As filed with the Securities and Exchange Commission on May 12, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
SALANT CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 13-3402444
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(State of incorporation or organization) (I.R.S. Employer Identification
No.)
1114 Avenue of the Americas
New York, New York 10036
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is to be
to be so registered registered
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If this Form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. |_|
If this Form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. |X|
Securities Act registration statement file number to which this form
relates (if applicable): _____.
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, $1.00 par value per share
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(Title of class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
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GENERAL
On December 29, 1998 (the "Filing Date"), Salant Corporation
("Salant") filed a voluntary petition for relief under chapter 11 of title
11 of the United States Code with the United States Bankruptcy Court for
the Southern District of New York (the "Bankruptcy Court"). On the Filing
Date, Salant also filed with the Bankruptcy Court its chapter 11 plan of
reorganization (as amended, the "Plan"). On April 16, 1999, the Bankruptcy
Court entered an order (the "Confirmation Order") confirming the Plan. The
effective date of the Plan occurred on May 11, 1999 (the "Effective Date").
Pursuant to the Plan, on the Effective Date, Salant, among other
things, filed with the Delaware Secretary of State a Restated and Amended
Certificate of Incorporation (the "Certificate of Incorporation"), under
which the authorized capital stock of Salant as of the Effective Date
consists of (i) 45,000,000 shares of Common Stock, $1.00 par value per
share (the "Common Stock") and (ii) 5,000,000 shares of Preferred Stock,
$2.00 par value per share (the "Preferred Stock"). This registration
statement on Form 8-A pertains only to the Common Stock. Pursuant to the
Plan, on or as soon as practicable after the Effective Date, Salant will
issue to the holders of (i) Salant's 10-1/2% Senior Secured Notes due
December 31, 1998 an aggregate of 9,500,000 shares of Common Stock and
(ii) Salant's existing common stock an aggregate of 500,000 shares of Common
Stock. No Preferred Stock was issued on the Effective Date. Pursuant to the
Certificate of Incorporation, Preferred Stock may be issued in one or more
series as determined from time to time by Salant's Board of Directors (the
"Board") without further approval of the stockholders. Upon issuance of
Preferred Stock, the Board will fix the voting powers, designations,
preferences, and relative, participating, optional, redemption, conversion,
exchange or other special rights, qualifications, limitations or
restrictions of such Preferred Stock, to the full extent permitted by law.
Pursuant to the Certificate of Incorporation, Salant may not create,
designate, authorize or cause to be issued any class or series of nonvoting
stock.
COMMON STOCK
The Amended and Restated By-laws of Salant, which were adopted by
Salant on the Effective Date (the "By-laws"), provide that the holders of
shares of Common Stock are entitled to one vote, in person or by proxy, for
each share on all matters submitted to a vote of Salant's stockholders.
Except as the General Corporation Law of the State of Delaware (the
"General Corporation Law") or the Certificate of Incorporation may
otherwise provide, the holders of a majority in voting power of the issued
and outstanding shares of capital stock of Salant entitled to vote shall
constitute a quorum at a meeting of stockholders for the transaction of any
business. Under the By-laws, the stockholders present at a meeting may
adjourn the meeting despite the absence of a quorum. When a quorum is once
present, it is not broken by the subsequent withdrawal of any stockholder.
Under the By-laws, any action required or permitted to be taken by the
stockholders of Salant may be effected at a duly called annual or special
meeting of such stockholders, setting forth the action so taken. The
By-laws provide that special meetings of stockholders may be called by the
Board or by stockholders holding together at least 25% in voting power of
all the shares of Salant entitled to vote at the meeting. Any action which
may be taken at a meeting of the stockholders may be taken by the written
consent of the holders of not less than the minimum number of votes that
would be necessary to take such action. The initial Board consists of the
five persons identified in the Plan. The Board will be divided into three
classes; the first class, the second class and the third class. Each
director will serve for a term ending on the date of the third annual
meeting following the annual meeting at which such director was elected;
(provided, however,) that the directors designated as members of the first
class pursuant to a notice filed with the Bankruptcy Court (the "Notice")
shall serve for a term ending upon the election of directors at the first
annual meeting next following the end of the calendar year 1999, the
directors designated as members of the second class pursuant to the Notice
shall serve for a term ending upon the election of directors at the second
annual meeting next following the end of the calendar year 1999 and the
directors designated as members of the third class pursuant to the Notice
shall serve for a term ending upon the election of directors at the third
annual meeting next following the end of the calendar year 1999. The
Certificate of Incorporation provides that the affirmative vote of the
holders of at least two-thirds (or such greater proportion as may otherwise
be required by any specific provision of the Certificate of Incorporation)
of Common Stock entitled to vote generally as to the election of directors
is required to amend, repeal or adopt any provision inconsistent with
paragraph (b) of Article SIXTH (i.e., shareholder action by written
consent), paragraphs (c) and (m) of Article SEVENTH (i.e., election, term
and filling of vacancies of members of the Board) and the last sentence of
Article NINTH of the Certificate of Incorporation (i.e., amending certain
provisions of the Certificate of Incorporation). There is no provision in
the Certificate of Incorporation for cumulative voting with respect to the
election of directors of Salant. Under the By-laws, subject to the
provisions of the General Corporation Law and the Certificate of
Incorporation, dividends on the shares of capital stock of Salant may be
declared by the Board at any regular or special meeting, and may be paid in
cash, in property or in shares of stock of Salant. The shares of Common
Stock have no preemptive or conversion rights, redemption rights or sinking
fund provisions. The By-laws provide that Salant shall be entitled to hold
liable for calls and assessments a person registered on its records as the
owner of shares of Common Stock.
The Plan requires that Salant use its reasonable best efforts to
cause the Common Stock to be listed on a national securities exchange or
the NASDAQ National Market System. Salant intends to make application for
inclusion of the Common Stock on the NASDAQ National Market System.
Item 2. Exhibits.
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1.1 Amended and Restated Certificate of Incorporation of Salant
Corporation, filed with the Secretary of State of Delaware
and made effective as of the Effective Date.
1.2 Amended and Restated By-laws of Salant Corporation effective
as of the Effective Date.
1.3 First Amended Chapter 11 Plan of Reorganization for Salant
Corporation, dated February 3, 1999 (incorporated herein by
reference to Exhibit 2.5 of Salant's Current Report on Form
8-K filed on April 30, 1999).
1.4 Form of Registration Rights Agreement (incorporated herein
by reference to Exhibit B to Exhibit 2.5 of Salant's Current
Report on Form 8-K filed on April 30, 1999).
1.5 Order Pursuant to Section 1129 of the Bankruptcy Code
Confirming the First Amended Plan of Reorganization of
Salant Corporation, dated April 16, 1999 (incorporated
herein by reference to Exhibit 99.3 of Salant's Current
Report on Form 8-K filed on April 30, 1999).
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereto duly authorized.
Date: May 12, 1999
SALANT CORPORATION
By:/s/ Todd Kahn
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Todd Kahn,
Chief Operating Officer and General Counsel
Exhibit 1.1
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SALANT CORPORATION
1. The name of the Corporation is Salant Corporation.
2. The original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on April 9, 1987 under the name
Salant Corporation. In addition, an Amended and Restated Certificate of
Incorporation was filed with the Secretary of State on September 13, 1993.
3. This Amended and Restated Certificate of Incorporation, which
restates and further amends the Amended and Restated Certificate of
Incorporation as currently in effect, is made and was adopted and filed
pursuant to the order of the United States Bankruptcy Court (the
"Bankruptcy Court"), Southern District of New York (In re Salant
Corporation, No. 98 B 10107 (CB)), and the Plan of Reorganization confirmed
therein (the "Plan of Reorganization") in connection with the
reorganization of the Corporation under Title 11 of the United States Code
and is intended to supercede the Corporation's prior Certificate of
Incorporation, as amended and restated, in all respects and is made in
accordance with Sections 103 and 303 of the General Corporation Law of the
State of Delaware.
4. This Amended and Restated Certificate of Incorporation shall become
effective at 9:00 a.m. on May 11, 1999.
5. The Corporation's Amended and Restated Certificate of
Incorporation, as currently in effect, is hereby restated and further
amended so as to read in its entirety as follows:
FIRST: The name of the Corporation is:
SALANT CORPORATION
SECOND: The address of the Corporation's registered office in the
State of Delaware is The Prentice-Hall Corporation System, Inc., 229 South
State Street, Dover, County Kent, Delaware 19901. The name of its
registered agent at such address is The Prentice-Hall Corporation System,
Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as from time to time amended.
FOURTH: (a) The total number of shares of capital stock which the
Corporation shall have authority to issue is 50,000,000 shares. Of these,
(i) 45,000,000 shares shall be shares of Common Stock having a par value of
$1.00 per share (the "Common Stock"), and (ii) 5,000,000 shares shall be
shares of Preferred Stock, having a par value of $2.00 per share (the
"Preferred Stock"). Except as otherwise provided by law, the shares of
capital stock of the Corporation regardless of class, may be issued by the
Corporation from time to time in such amounts, for such lawful
consideration and for such corporate purpose(s) as the Board of Directors
may from time to time determine.
(b) Preferred Stock may be issued in one or more series as may be
determined from time to time by the Board of Directors. Authority is hereby
expressly granted to the Board of Directors to authorize the issuance of
one or more series of Preferred Stock, and, subject to Article FIFTH, to
fix by resolution or resolutions providing for the issue of each such
series the voting powers, designations, preferences, and relative,
participating, optional, redemption, conversion, exchange or other special
rights, qualifications, limitations or restrictions of such series, and the
number of shares in each series, to the full extent now or hereafter
permitted by law.
FIFTH: The Corporation shall not create, designate, authorize or cause
to be issued any class or series of nonvoting stock. For purposes of this
Article FIFTH, any class or series of stock, including any series of
Preferred Stock, that has only such voting rights as are mandated by the
General Corporation Law of the State of Delaware, shall be deemed to be
nonvoting stock subject to the restrictions of this Article FIFTH.
SIXTH: (a) In furtherance and not in limitation of the powers
conferred by law, subject to any limitations contained elsewhere in the
Amended and Restated Certificate, by-laws of the Corporation may be
adopted, amended or repealed by a majority of the Board of Directors of the
Corporation, but any by-laws adopted by the Board of Directors may also be
amended or repealed by the stockholders entitled to vote thereon. Election
of directors need not be by written ballot.
(b) Any action which may be taken at any annual or special meeting of
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. Every written consent shall bear the date of signature
of each stockholder who signs the consent, and no written consent shall be
effective to take the corporate action referred to therein unless, within
sixty (60) days of the earliest dated consent delivered in the manner set
forth below, written consents signed by the requisite number of holders to
take action are delivered to the Corporation by delivery to its registered
office, its principal place of business or to an officer of the Corporation
having custody of the book in which proceedings of meeting of stockholders
are recorded. Such delivery shall be by hand or by certified or registered
mail return receipt requested. Prompt notice of the taking of such
shareholder action without a meeting by less than unanimous consent shall
be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to
notice.
SEVENTH: (a) The business, property and affairs of the Corporation
shall be managed by, or under the direction of, the Board of Directors,
which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Restated Certificate of
Incorporation directed or required to be exercised or done by the
stockholders.
(b) Each director shall be at least 18 years of age. A director need
not be a stockholder, a citizen of the United States, or a resident of the
State of Delaware. The number of directors constituting the entire Board
shall initially consist of 5 members and henceforward shall consist of not
less than 3 nor more than 10 members, the exact number of which shall be
fixed from time to time by action of the Board of Directors, one of whom
may be selected by the Board of Directors to be its Chairman. The use of
the phrase "entire Board" herein refers to the total number of directors
which the Corporation would have if there were no vacancies or unfilled
newly created directorships. Except as provided in (m) below, directors
shall be elected by a plurality of the votes cast at annual meetings of
stockholders, and each director so elected shall hold office as provided by
the Restated Certificate of Incorporation. None of the directors need be
stockholders of the Corporation.
(c) The directors of the Corporation shall be divided into three
classes; the first class, the second class and the third class. Each
director shall serve for a term ending on the third annual meeting
following the annual meeting at which such director was elected; provided,
however, that the directors designated as members of the first class
pursuant to a notice filed with the Bankruptcy Court (the "Notice") shall
serve for a term ending upon the election of directors at the first annual
meeting next following the end of the calendar year 1999, the directors
designated as members of the second class pursuant to the Notice shall
serve for a term ending upon the election of directors at the second annual
meeting next following the end of the calendar year 1999 and the directors
designated as members of the third class pursuant to the Notice shall serve
for a term ending upon the election of directors at the third annual
meeting next following the end of the calendar year 1999. At each annual
meeting, the successors to the class or directors whose term expires at
that time shall be elected by the stockholders to hold office for a term
ending on the third annual meeting following such annual meeting to succeed
those directors whose term expires, so that the term of one class of
directors shall expire upon the election of directors at each annual
meeting. In the event of any change in the authorized number of directors,
each director then continuing to serve as such shall nevertheless continue
as a director of the class of which such director is a member until the
expiration of such director's current term, or prior resignation,
disqualification, disability or removal.
(d) Directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation
for attending committee meetings.
(e) Except as otherwise provided by law, a majority of the entire
Board shall constitute a quorum. A majority of the directors present,
whether or not a quorum is present, may adjourn a meeting from time to time
to another time and place without notice. The vote of the majority of the
directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors.
(f) Meetings of the Board of Directors may be held at any place within
or without the State of Delaware, as may from time to time be fixed by
resolution of the Board of Directors, or as may be specified in the notice
of meeting.
(g) Following the annual meeting of stockholders, the newly elected
Board of Directors shall meet for the purpose of the election of officers
and the transaction of such other business as may properly come before the
meeting. Such meeting may be held without notice immediately after the
annual meeting of stockholders at the same place at which such
stockholders' meeting is held. In the event such annual meeting of
stockholders is not so held, the annual meeting of the Board of Directors
may be held at such other time or place within or without the State of
Delaware as specified in the notice thereof.
(h) Regular meetings of the Board of Directors shall be held at such
times and places as the Board of Directors shall from time to time by
resolution determine. Notice need not be given of regular meetings of the
Board of Directors held at times and places fixed by resolution of the
Board of Directors.
(i) Special meetings of the Board of Directors shall be held whenever
called by the Chairman of the Board, President, Vice-Chairman or a majority
of the directors then in office.
(j) A notice of the place, date and time and the purpose or purposes
of each special meeting of the Board of Directors shall be given to each
director by mailing the same at least two days before the special meeting,
or by telegraphing or telephoning the same or by delivering the same
personally not later than the day before the day of the meeting.
(k) At all meetings of the Board of Directors, the Chairman, if any,
or if none or in the Chairman's absence or inability to act the President,
or in the President's absence or inability to act any Vice-President who is
a member of the Board of Directors, or in such Vice-President's absence or
inability to act a chairman chosen by the directors, shall preside. The
Secretary of the Corporation shall act as secretary at all meetings of the
Board of Directors when present, and, in the Secretary's absence, the
presiding officer may appoint any person to act as secretary.
(l) Any director may resign at any time upon written notice to the
Corporation and such resignation shall take effect upon receipt thereof by
the President or Secretary, unless otherwise specified in the resignation.
Any or all of the directors may be removed, with or without cause, by the
holders of a majority in voting power of the shares of stock outstanding
and entitled to vote for the election of directors.
(m) Unless otherwise provided in these By-laws, vacancies on the Board
of Directors, whether caused by resignation, death, disqualification,
removal, an increase in the authorized number of directors or otherwise,
may be filled by the affirmative vote of a majority of the remaining
directors, although less than a quorum, or by a sole remaining director, or
at a special meeting of the stockholders, by the holders of shares entitled
to vote for the election of directors; provided, however, that, if the
holders of any class or classes of the Corporation's stock or series
thereof, voting separately, are entitled to elect one or more directors,
vacancies and newly created directorships of such class or classes or
series thereof may be filled by a majority of the directors elected by such
class or classes or series thereof then in office, or by a sole remaining
director so elected. Directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of the
class to which they have been elected expires. If, consistent with the
preceding requirement, the increase or decrease may be allocated to more
than one class, the increase or decrease may be allocated to any such class
as a majority of the Board of Directors selects in its discretion. No
decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
(n) Any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if all the directors
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board of Directors.
(o) Any one or more members of the Board of Directors, or of any
committee thereof, may participate in a meeting of the Board of Directors,
or of such committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means
shall constitute presence in person at such meeting.
EIGHTH: (a) A director of the Corporation shall not be personally
liable either to the Corporation or to any of its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability
for (i) any breach of the director's duty of loyalty to the Corporation or
its stockholders, or (ii) acts or omissions which are not in good faith or
which involve intentional misconduct or knowing violation of the law, or
(iii) any matter in respect of which such director shall be liable under
Section 174 of Title 8 of the General Corporation Law of the State of
Delaware or any amendment thereto or successor provision thereto, or (iv)
any transaction from which the director shall have derived an improper
personal benefit. Neither amendment nor repeal of this paragraph (a) nor
the adoption of any provision of the Amended and Restated Certificate of
Incorporation inconsistent with this paragraph (a) shall eliminate or
reduce the effect of this paragraph (a) in respect of any matter occurring,
or any cause of action, suit or claim that, but for this paragraph (a) of
this Article EIGHTH, would accrue or arise, prior to such amendment, repeal
or adoption of an inconsistent provision. If the General Corporation Law of
Delaware is hereafter amended to permit further elimination or limitation
of the personal liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of Delaware as so amended.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to, or testifies in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter, a "proceeding"), 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, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, employee benefit plan, trust or other enterprise
(hereinafter, an "indemnitee") whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as such a director, officer,
employee or agent. The indemnitee shall be indemnified and held harmless by
the Corporation to the full extent authorized by the General Corporation
Law of Delaware, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said
law permitted the Corporation to provide prior to such amendment), or by
other applicable law as then in effect, against all expense, liability and
loss (including attorneys' fees, judgments, fines, excise taxes under the
Employee Retirement Income Security Act of 1974, as amended from time to
time ("ERISA"), penalties and amounts to be paid in settlement) actually
and reasonably incurred or suffered by such indemnitee in connection
therewith. The Corporation may adopt By-laws or enter into agreements with
any such person for the purpose of providing for such indemnification.
(c) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to, or testifies in, any proceeding by
or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise against expenses (including attorneys' fees) 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, provided that no indemnification shall
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the court
in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(d) Any indemnification under this Article EIGHTH (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 present or former
director, officer, employee or agent is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
General Corporation Law of Delaware, as the same exists or hereafter may be
amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment). Such determination shall be made with respect to a person who
is a director or officer at the time of such determination (A) by a
majority vote of the directors who were not parties to such action, suit or
proceeding (the "Disinterested Directors"), even though less than a quorum,
or (B) by a committee of Disinterested Directors designated by a majority
vote of such directors, even though less than a quorum or (C) if there are
no Disinterested Directors or if the Disinterested Directors so direct, by
independent legal counsel in a written opinion, or (D) by the stockholders.
(e) Costs, charges and expenses (including attorneys' fees) incurred
by a director, officer, employee or agent of the Corporation in defending a
civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay all amounts so advanced in the event
that it shall ultimately be determined that such director, officer,
employee or agent is not entitled to be indemnified by the Corporation as
authorized in this Article EIGHTH. The majority of the Disinterested
Directors may, in the manner set forth above, and upon approval of such
director, officer, employee or agent of the Corporation, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit
or proceeding.
(f) Any indemnification or advance of costs, charges and expenses
under this Article EIGHTH shall be made promptly, and in any event within
60 days upon the written request of the director, officer, employee or
agent. The right to indemnification or advances as granted by this Article
EIGHTH shall be enforceable by the director, officer, employee or agent, as
the case may be, in any court of competent jurisdiction, if the Corporation
denies such request, in whole or in part, or if no disposition thereof is
made within 60 days. Such person's costs and expense incurred in connection
with successfully establishing his or her right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
Corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of costs, charges and expenses
under this Article EIGHTH where the required undertaking has been received
by the Corporation) that the claimant has not met the standard of conduct
set forth in the General Corporation Law of Delaware, as the same exists or
hereafter may be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment), but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its
Board of Directors, its independent legal counsel and its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in the General
Corporation Law of Delaware, as the same exists or hereafter may be amended
(but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such
amendment), nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal
counsel and its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of
conduct.
(g) The indemnification and advancement of expenses provided by this
Article EIGHTH shall not be deemed exclusive of any other rights to which a
person seeking indemnification or advancement of expenses may be entitled
under any law (common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his or her official capacity and as to action in another capacity while
holding office or while employed by or acting as agent for the Corporation,
and shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. All rights to indemnification
under this Article EIGHTH shall be deemed to be a contract between the
Corporation and each director, officer, employee or agent of the
Corporation who serves or served in such capacity at any time while this
Article EIGHTH is in effect. Any repeal or modification of this Article
EIGHTH shall not in any way diminish any rights to indemnification of such
director, officer, employee or agent or the obligations of the Corporation
arising hereunder with respect to any action, suit or proceeding arising
out of, or relating to, any actions, transactions or facts occurring prior
to the final adoption of such modification or repeal. For the purposes of
this Article EIGHTH, references to "the Corporation" include all
constituent corporations absorbed in a consolidation or merger as well as
the resulting or surviving corporation, so that any person who is or was a
director, officer, employee or agent of such a constituent corporation is
or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise shall stand in the same position
under the provisions of this Article EIGHTH, with respect to the resulting
or surviving corporation, as he or she would if he or she had served the
resulting or surviving corporation in the same capacity.
(h) The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was or has agreed to become a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred
by him or her or on his or her behalf in any such capacity, or arising out
of his or her status as such, whether or not the Corporation would have the
power to indemnify him or her against such liability under the provisions
of this Article EIGHTH, provided, however, that such insurance is available
on acceptable terms, which determination shall be made by a vote of a
majority of the Board of Directors.
(i) If this Article EIGHTH or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation
shall nevertheless indemnify each person entitled to indemnification under
the first paragraph of this Article EIGHTH as to all expense, liability and
loss (including attorneys' fees, judgments, fines, EIRSA excise taxes,
penalties and amounts to be paid in settlement) actually and reasonably
incurred or suffered by such person and for which indemnification is
available to such person pursuant to this Article EIGHTH to the full extent
permitted by any applicable portion of this Article EIGHTH that shall not
have been invalidated and to the full extent permitted by applicable law.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation in the manner now or hereafter prescribed by statute, and all
rights conferred by the stockholders herein are granted subject to
reservation. Notwithstanding the foregoing, the affirmative vote of the
holder's of at least two-thirds (or such greater proportion as may
otherwise be required pursuant to any specific provision of this
Certificate of Incorporation) of the stock of the Corporation entitled to
vote generally in the election of directors shall be required to amend,
repeal or adopt any provisions inconsistent with paragraph (b) of Article
SIXTH, paragraphs (c) and (m) of Article SEVENTH and this sentence of
Article NINTH of this Certificate of Incorporation.
TENTH: The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Salant Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by Todd Kahn, its Chief
Operating Officer, General Counsel and Secretary, and attested by William
Bennett, its Treasurer, this 11th day of May, 1999.
SALANT CORPORATION
By /s/ Todd Kahn
---------------------------------
Todd Kahn,
Chief Operating Officer,
General Counsel and Secretary
ATTEST:
By /s/ William Bennett
---------------------------------
Willaim Bennett,
Treasurer
Exhibit 1.2
===========================================================================
AMENDED AND RESTATED
BY-LAWS
OF
SALANT CORPORATION
(A DELAWARE CORPORATION)
ARTICLE I
STOCKHOLDERS
SECTION 1. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment
thereof, 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 a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and
which record date: (1) in the case of determination of stockholders
entitled to vote at any meeting of stockholders or adjournment thereof,
shall, unless otherwise required by law, not be more than sixty nor less
than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors; and (3) in the case of any other action, shall not be
more than sixty days prior to such other action. If no record date is
fixed: (1) 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; (2) the record date for determining
stockholders entitled to express consent to corporate action in writing
without a meeting, when no prior action of the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on
the day on which the Board of Directors adopts the resolution taking such
prior action; and (3) 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 relation thereto. 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 2. Annual Meetings. The annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held each year at such date and
time, and at such place within or without the State of Delaware, as shall
be designated by the Board of Directors and set forth in the notice or in a
duly executed waiver of notice thereof.
SECTION 3. Special Meetings. Special meetings of stockholders for the
transaction of such business as may properly come before the meeting may be
called by order of the Board of Directors or by stockholders holding
together at least 25% in voting power of all the shares of the Corporation
entitled to vote at the meeting, and shall be held at such date and time,
and at such place within or without the State of Delaware, as may be
specified in the notice or in a duly executed waiver of notice of such
meeting. Whenever the directors shall fail to fix such place, the meeting
shall be held at the principal executive office of the Corporation. Only
such business as is stated in the written notice of special meeting may be
acted upon thereat.
SECTION 4. Notice of Meetings. Except as otherwise provided by law,
written notice of all meetings of the stockholders, stating the place, date
and hour of the meeting and the place within the city or other municipality
or community at which the list of stockholders may be examined, shall be
mailed or delivered to each stockholder not less than 10 nor more than 60
days prior to the meeting. Notice of any special meeting shall state in
general terms the purpose or purposes for which the meeting is to be held.
If mailed, such notice shall be deemed to be given when deposited in the
United States mail, postage prepaid, directed to the stockholder at such
stockholder's address as it appears on the records of the Corporation. If,
prior to the time of mailing, the Secretary shall have received from any
stockholder entitled to vote a written request that notices intended for
such stockholder are to be mailed to an address other than the address that
appears on the records of the Corporation, notices intended for such
stockholder shall be mailed to the address designated in such request.
Notice of a special meeting may be given by the person or persons
calling the meeting, or, upon the written request of such person or
persons, by the Secretary of the Corporation on behalf of such person or
persons. If the person or persons calling a special meeting of stockholders
gives notice thereof, such person or persons shall forward a copy thereof
to the Secretary. Every request to the Secretary for the giving of notice
of a special meeting of stockholders shall state the purpose or purposes of
such meeting.
SECTION 5. Waiver of Notice. Notice of any annual or special meeting
of stockholders need not be given to any stockholder entitled to vote at
such meeting who files a written waiver of notice with the Secretary, duly
executed by the person entitled to notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
meeting of stockholders need be specified in any written waiver of notice.
Attendance of a stockholder at a meeting, in person or by proxy, shall
constitute a waiver of notice of such meeting, except as provided by law.
SECTION 6. Adjournments. When a meeting is adjourned to another date,
hour or place, notice need not be given of the adjourned meeting if the
date, hour and place thereof are announced at the meeting at which the
adjournment is taken. If the adjournment is for more than 30 calendar days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting. At the
adjourned meeting any business may be transacted which might have been
transacted at the original meeting.
When any meeting is convened the presiding officer may adjourn the
meeting if (a) no quorum is present for the transaction of business or (b)
the Board of Directors determines that adjournment is necessary or
appropriate to enable the stockholders (i) to consider fully information
which the Board of Directors determines has not been made sufficiently or
timely available to stockholders or (ii) otherwise to exercise effectively
their voting rights.
SECTION 7. Stockholder Lists. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least 10 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 registerered in the
name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane 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.
The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by
this section or the books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
SECTION 8. Quorum. Except as otherwise provided by law or the
Corporation's Restated Certificate of Incorporation, a quorum for the
transaction of business at any meeting of stockholders shall consist of the
holders of record of a majority in voting power of the issued and
outstanding shares of the capital stock of the Corporation entitled to vote
at the meeting, present in person or by proxy. If there be no such quorum,
the holders of a majority in voting power of such shares so present or
represented may adjourn the meeting from time to time, without further
notice, until a quorum shall have been obtained. When a quorum is once
present it is not broken by the subsequent withdrawal of any stockholder.
SECTION 9. Organization. Meetings of stockholders shall be presided
over by the Chairman, if any, or if none or in the Chairman's absence the
Vice-Chairman, if any, or if none or in the Vice-Chairman's absence the
President, if any, or if none or in the President's absence a
Vice-President, or, if none of the foregoing is present, by a chairman to
be chosen by the stockholders entitled to vote who are present in person or
by proxy at the meeting. The Secretary of the Corporation, or in the
Secretary's absence an Assistant Secretary, shall act as secretary of every
meeting, but if neither the Secretary nor an Assistant Secretary is
present, the presiding officer of the meeting shall appoint any person
present to act as secretary of the meeting.
SECTION 10. Voting; Proxies; Required Vote. (a) At each meeting of
stockholders, every stockholder shall be entitled to vote in person or by
proxy (but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period), and, unless
the Restated Certificate of Incorporation provides otherwise, shall have
one vote for each share of stock entitled to vote registered in the name of
such stockholder on the books of the Corporation on the applicable record
date fixed pursuant to these By-laws. At all elections of directors the
voting may but need not be by ballot. Except as otherwise required by law
or the Restated Certificate of Incorporation, any action other than the
election of directors shall be authorized by a majority in voting power of
the shares present in person or represented by proxy at the meeting.
(b) Any action which may be taken at any annual or special meeting of
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. Every written consent shall bear the date of signature
of each stockholder who signs the consent, and no written consent shall be
effective to take the corporate action referred to therein unless, within
sixty (60) days of the earliest dated consent delivered in the manner set
forth below, written consents signed by the requisite number of holders to
take action are delivered to the Corporation by delivery to its registered
office, its principal place of business or to an officer of the Corporation
having custody of the book in which proceedings of meeting of stockholders
are recorded. Such delivery shall be by hand or by certified or registered
mail return receipt requested. Prompt notice of the taking of such
shareholder action without a meeting by less than unanimous consent shall
be given to those stockholders who have not consented in writing and who,
if the action had been taken at a meeting, would have been entitled to
notice.
(c) Where a separate vote by a class or classes, present in person or
represented by proxy, is required by law or the Restated Certificate of
Incorporation, the affirmative vote of the majority in voting power of
shares of such class or classes present in person or represented by proxy
at the meeting shall be the act of such class, unless otherwise provided in
the Corporation's Restated Certificate of Incorporation.
SECTION 11. Inspectors. The Board of Directors, in advance of any
meeting, may, but need not, unless required by law, appoint one or more
inspectors of election to act at the meeting or any adjournment thereof. If
an inspector or inspectors are not so appointed, the person presiding at
the meeting may, but need not, unless required by law, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails
to appear or act, the vacancy may be filled by appointment made by the
directors in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector, if any, before entering upon the
discharge of his or her 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 inspector or
inspectors, if any, shall make a report in writing of any challenge,
question or matter determined by such inspector or inspectors and execute a
certificate of any fact found by such inspector or inspectors.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. General Powers. The business, property and affairs of the
Corporation shall be managed by, or under the direction of, the Board of
Directors, which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by law or by the Restated
Certificate of Incorporation directed or required to be exercised or done
by the stockholders.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each
director shall be at least 18 years of age. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the entire Board shall
initially consist of 5 members and henceforward shall consist of not less
than 3 nor more than 10 members, the exact number of which shall be fixed
from time to time by action of the Board of Directors, one of whom may be
selected by the Board of Directors to be its Chairman. The use of the
phrase "entire Board" herein refers to the total number of directors which
the Corporation would have if there were no vacancies or unfilled newly
created directorships. Except as provided in Section 11 of this Article II,
directors shall be elected by a plurality of the votes cast at annual
meetings of stockholders, and each director so elected shall hold office as
provided by the Restated Certificate of Incorporation. None of the
directors need be stockholders of the Corporation.
(b) The directors of the Corporation shall be divided into three
classes; the first class, the second class and the third class. Each
director shall serve for a term ending on the third annual meeting
following the annual meeting at which such director was elected; provided,
however, that the directors designated as members of the first class
pursuant to a notice filed with the Bankrtupcy Court (the "Notice") shall
serve for a term ending upon the election of directors at the first annual
meeting next following the end of the calendar year 1999, the directors
designated as members of the second class pursuant to the Notice shall
serve for a term ending upon the election of directors at the second annual
meeting next following the end of the calendar year 1999 and the directors
designated as members of the third class pursuant to the Notice shall serve
for a term ending upon the election of directors at the third annual
meeting next following the end of the calendar year 1999. At each annual
meeting, the successors to the class or directors whose term expires at
that time shall be elected by the stockholders to hold office for a term
ending on the third annual meeting following such annual meeting to succeed
those directors whose term expires, so that the term of one class of
directors shall expire upon the election of directors at each annual
meeting. In the event of any change in the authorized number of directors,
each director then continuing to serve as such shall nevertheless continue
as a director of the class of which such director is a member until the
expiration of such director's current term, or prior resignation,
disqualification, disability or removal.
(c) Directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation
for attending committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided
by law, a majority of the entire Board shall constitute a quorum. A
majority of the directors present, whether or not a quorum is present, may
adjourn a meeting from time to time to another time and place without
notice. The vote of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
SECTION 4. Places of Meetings. Meetings of the Board of Directors may
be held at any place within or without the State of Delaware, as may from
time to time be fixed by resolution of the Board of Directors, or as may be
specified in the notice of meeting.
SECTION 5. Annual Meeting. Following the annual meeting of
stockholders, the newly elected Board of Directors shall meet for the
purpose of the election of officers and the transaction of such other
business as may properly come before the meeting. Such meeting may be held
without notice immediately after the annual meeting of stockholders at the
same place at which such stockholders' meeting is held. In the event such
annual meeting of stockholders is not so held, the annual meeting of the
Board of Directors may be held at such other time or place within or
without the State of Delaware as specified in the notice thereof.
SECTION 6. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as the Board of Directors
shall from time to time by resolution determine. Notice need not be given
of regular meetings of the Board of Directors held at times and places
fixed by resolution of the Board of Directors.
SECTION 7. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board,
President, Vice-Chairman or a majority of the directors then in office.
SECTION 8. Notice of Special Meetings. A notice of the place, date and
time and the purpose or purposes of each special meeting of the Board of
Directors shall be given to each director by mailing the same at least two
days before the special meeting, or by telegraphing or telephoning the same
or by delivering the same personally not later than the day before the day
of the meeting.
SECTION 9. Organization. At all meetings of the Board of Directors,
the Chairman, if any, or if none or in the Chairman's absence or inability
to act the President, or in the President's absence or inability to act any
Vice-President who is a member of the Board of Directors, or in such
Vice-President's absence or inability to act a chairman chosen by the
directors, shall preside. The Secretary of the Corporation shall act as
secretary at all meetings of the Board of Directors when present, and, in
the Secretary's absence, the presiding officer may appoint any person to
act as secretary.
SECTION 10. Resignation. Any director may resign at any time upon
written notice to the Corporation and such resignation shall take effect
upon receipt thereof by the President or Secretary, unless otherwise
specified in the resignation. Any or all of the directors may be removed,
with or without cause, by the holders of a majority in voting power of the
shares of stock outstanding and entitled to vote for the election of
directors.
SECTION 11. Vacancies. Unless otherwise provided in these By-laws,
vacancies on the Board of Directors, whether caused by resignation, death,
disqualification, removal, an increase in the authorized number of
directors or otherwise, may be filled by the affirmative vote of a majority
of the remaining directors, although less than a quorum, or by a sole
remaining director, or at a special meeting of the stockholders, by the
holders of shares entitled to vote for the election of directors; provided,
however, that, if the holders of any class or classes of the Corporation's
stock or series thereof, voting separately, are entitled to elect one or
more directors, vacancies and newly created directorships of such class or
classes or series thereof may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a
sole remaining director so elected. Directors so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term
of the class to which they have been elected expires. If, consistent with
the preceding requirement, the increase or decrease may be allocated to
more than one class, the increase or decrease may be allocated to any such
class as a majority of the Board of Directors selects in its discretion. No
decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
SECTION 12. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all the directors consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board
of Directors.
SECTION 13. Meetings by Conference Telephone, etc. Any one or more
members of the Board of Directors, or of any committee thereof, may
participate in a meeting of the Board of Directors, or of such committee,
by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
ARTICLE III
COMMITTEES
SECTION 1. Appointment. From time to time the Board of Directors by
resolution may appoint any committee or committees for any purpose or
purposes, to the extent lawful, which shall have powers as shall be
determined and specified by the Board of Directors in the resolution of
appointment. In the absence or disqualification of a member of a committee,
the member or members present at any meeting and not disqualified from
voting, whether or not such member or members constitute 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.
SECTION 2. Procedures, Quorum and Manner of Acting. Each committee
shall fix its own rules of procedure and shall meet where and as provided
by such rules or by resolution of the Board of Directors. Except as
otherwise provided by law, the presence of a majority of the then appointed
members of a committee shall constitute a quorum for the transaction of
business by that committee, and in every case where a quorum is present the
affirmative vote of a majority of the members of the committee present
shall be the act of the committee. Each committee shall keep minutes of its
proceedings, and actions taken by a committee shall be reported to the
Board of Directors.
SECTION 3. Action by Written Consent. Any action required or permitted
to be taken at any meeting of any committee of the Board of Directors may
be taken without a meeting if all the members of the committee consent
thereto in writing and the writing or writings are filed with the minutes
of proceedings of the committee.
SECTION 4. Term; Termination. In the event any person shall cease to
be a director of the Corporation, such person shall simultaneously
therewith cease to be a member of any committee appointed by the Board of
Directors.
ARTICLE IV
OFFICERS
SECTION 1. Election and Qualifications. The Board of Directors shall
elect the officers of the Corporation, which shall include a President and
a Secretary, and may include, by election or appointment, one or more
Vice-President (any one or more of whom may be given an additional
designation of rank or function), a Treasurer and such Assistant
Secretaries, such Assistant Treasurers and such other officers as the Board
of Directors may from time to time deem proper. Each officer shall have
such powers and duties as may be prescribed by these By-laws and as may be
assigned by the Board of Directors or the President. Any two or more
offices may be held by the same person except the offices of President and
Secretary.
SECTION 2. Term of Office and Remuneration. The term of office of all
officers shall be one year and until their respective successors have been
elected and qualified, but any officer may be removed from office, either
with or without cause, at any time by the Board of Directors. Any vacancy
in any office arising from any cause may be filled for the unexpired
portion of the term by the Board of Directors. The remuneration of all
officers of the Corporation may be fixed by the Board of Directors or in
such manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any time
upon written notice to the Corporation and such resignation shall take
effect upon receipt thereof by the President or Secretary, unless otherwise
specified in the resignation. Any officer shall be subject to removal, with
or without cause, at any time by vote of a majority of the entire Board of
Directors.
SECTION 4. Chairman of the Board. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the Board of
Directors and shall have such other powers and duties as may from time to
time be assigned by the Board of Directors.
SECTION 5. President. The President shall have general management and
supervision of the property, business and affairs of the Corporation and
over its other officers; may appoint and remove assistant officers and
other agents and employees, other than any Vice-President, the Secretary,
the Treasurer, any Assistant Secretaries or Assistant Treasurers or any
officers which the Board of Directors may from time to time appoint; and
may execute and deliver in the name of the Corporation powers of attorney,
contracts, bonds and other obligations and instruments.
SECTION 6. Vice-President. A Vice-President may execute and deliver in
the name of the Corporation contracts and other obligations and instruments
pertaining to the regular course of the duties of said office, and shall
have such other authority as from time to time may be assigned by the Board
of Directors or the President.
SECTION 7. Treasurer. The Treasurer shall in general have all duties
incident to the position of Treasurer and such other duties as may be
assigned by the Board of Directors or the President.
SECTION 8. Secretary. The Secretary shall in general have all the
duties incident to the office of Secretary and such other duties as may be
assigned by the Board of Directors or the President.
SECTION 9. Assistant Officers. Any assistant officer shall have such
powers and duties of the officer such assistant officer assists as such
officer or the Board of Directors shall from time to time prescribe.
ARTICLE V
BOOKS AND RECORDS
SECTION 1. Location. The books and records of the Corporation may be
kept at such place or places within or outside the State of Delaware as the
Board of Directors or the respective officers in charge thereof may from
time to time determine. The record books containing the names and addresses
of all stockholders, the number and class of shares of stock held by each
and the dates when they respectively became the owners of record thereof
shall be kept by the Secretary as prescribed in the By-laws and by such
officer or agent as shall be designated by the Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all
other corporate notices may be delivered personally or mailed to each
stockholder at the stockholder's address as it appears on the records of
the Corporation.
ARTICLE VI
CERTIFICATES REPRESENTING STOCK
SECTION 1. Certificates; Signatures. The shares of the Corporation
shall be represented by certificates, provided that the Board of Directors
of the Corporation may provide by resolution or resolutions that some or
all of any or all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a
certificate, signed by or in the name of the Corporation by the Chairman or
Vice-Chairman of the Board of Directors, or the President or
Vice-President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, representing the
number of shares registered in certificate form. Any and all signatures on
any such certificate may be facsimiles. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been placed
upon a 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 date of issue. The name of the holder of record of the
shares represented thereby, with the number of such shares and the date of
issue, shall be entered on the books of the Corporation.
SECTION 2. Transfers of Stock. Upon compliance with contractual or
other provisions, if any, restricting the transfer or registration of
transfer of shares of stock, shares of capital stock shall be transferable
on the books of the Corporation only by the holder of record thereof in
person, or by duly authorized attorney, upon surrender and cancellation of
certificates for a like number of shares, properly endorsed, and the
payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Corporation may, but shall not be
required to, issue certificate for fractions of a share where necessary to
effect authorized transactions, or the Corporation may pay in cash the fair
value of fractions of a share as of the time when those entitled to receive
such fractions are determined, or it may issue scrip in registered or
bearer form over the manual or facsimile signature of an officer of the
corporation or of its agent, exchangeable as therein provided for full
shares, but such scrip shall not entitle the holder to any rights of a
stockholder except as therein provided.
The Board of directors shall have power and authority to make all such
rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of the
Corporation.
SECTION 4. Lost, Stolen or Destroyed Certificates. The Corporation may
issue a new certificate of stock in place of any certificate theretofore
issued by it alleged to have been lost, stolen or destroyed, and the Board
of Directors may require the owner of any lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate
SECTION 5. Registered Stockholders. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its records as
the owner of shares of stock to receive dividends and to vote as such
owner, shall be entitled to hold liable for calls and assessments a person
registered on its records as the owner of shares of stock, and shall not be
bound to recognize any equitable or other claim to or interest in such
share or shares of stock on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
DIVIDENDS
SECTION 1. Dividends. Subject to the provisions of applicable law and
the Corporation's Restated Certificate of Incorporation, dividends upon the
shares of capital stock of the Corporation may be declared by the Board of
Directors at any regular or special meeting. Dividends may be paid in cash,
in property or in shares of stock of the Corporation, unless otherwise
provided by applicable law or the Corporation's Restated Certificate of
Incorporation.
SECTION 2. Reserves. 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 may, from time to time, in its 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 may
think conducive to the interests of the Corporation. The Board of Directors
may modify or abolish any such reserve in the manner in which it was
created.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. Nature of Indemnity. (a) To the fullest extent permitted by
applicable law, including the provisions of the General Corporation Law of
the State of Delaware, the Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to, or testifies in, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"),
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, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, employee benefit plan, trust or other
enterprise (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as such a
director, officer, employee or agent. The indemnitee shall be indemnified
and held harmless by the Corporation to the full extent authorized by the
General Corporation Law of Delaware, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent such
amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such
amendment), or by other applicable law as then in effect, against all
expense, liability and loss (including attorneys' fees, judgments, fines,
excise taxes under the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA"), penalties and amounts to be paid in
settlement) actually and reasonably incurred or suffered by such indemnitee
in connection therewith.
(b) The Corporation shall indemnify any person who was or is a party
to or is threatened to be made a party to, or testifies in, any proceeding
by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise against expenses (including attorneys' fees) 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, provided that no indemnification shall
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of the State of Delaware or the court
in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 2. Procedure. Any indemnification under this Article VIII
(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 present or former director, officer, employee or agent is proper in
the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of Delaware, as the same
exists or hereafter may be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment). Such determination shall be made with
respect to a person who is a director or officer at the time of such
determination (A) by a majority vote of the directors who were not parties
to such action, suit or proceeding (the "Disinterested Directors"), even
though less than a quorum, or (B) by a committee of Disinterested Directors
designated by a majority vote of such directors, even though less than a
quorum, or (C) if there are no Disinterested Directors or if the
Disinterested Directors so direct, by independent legal counsel in a
written opinion, or (D) by the stockholders.
SECTION 3. Advances for Expenses. Costs, charges and expenses
(including attorneys' fees) incurred by a director, officer, employee or
agent of the Corporation in defending a civil or criminal action, suit or
proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay all amounts so advanced in the event that it shall ultimately be
determined that such director, officer, employee or agent is not entitled
to be indemnified by the Corporation as authorized in this Article VIII.
The majority of the Disinterested Directors may, in the manner set forth
above, and upon approval of such director, officer, employee or agent of
the Corporation, authorize the Corporation's counsel to represent such
person, in any action, suit or proceeding, whether or not the corporation
is a party to such action, suit or proceeding.
SECTION 4. Procedure for Indemnification. Any indemnification or
advance of costs, charges and expenses under this Article VIII shall be
made promptly, and in any event within 60 days upon the written request of
the director, officer, employee or agent. The right to indemnification or
advances as granted by this Article VIII shall be enforceable by the
director, officer, employee or agent, as the case may be, in any court of
competent jurisdiction, if the Corporation denies such request, in whole or
in part, or if no disposition thereof is made within 60 days. Such person's
costs and expenses incurred in connection with successfully establishing
his or her right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Corporation. It shall be a defense
to any such action (other than an action brought to enforce a claim for the
advance of costs, charges and expenses under this Article VIII where the
required undertaking has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in the General
Corporation Law of Delaware, as the same exits or hereafter may be amended
(but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such
amendment), but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) to have made
a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in the General
Corporation Law of Delaware, as the same exits or hereafter may be amended
(but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights
that said law permitted the Corporation to provide prior to such
amendment), nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal
counsel and its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of
conduct.
SECTION 5. Other Rights; Continuation of Right to Indemnification. The
indemnification and advancement of expenses provided by this Article VIII
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any law
(common or statutory), by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding office
or while employed by or acting as agent for the Corporation, and shall
continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the estate, heirs, executors and
administers of such person. All rights to indemnification under this
Article VIII shall be deemed to be a contract between the Corporation and
each director, officer, employee or agent of the Corporation who serves or
served in such capacity at any time while this Article VIII is in effect.
Any repeal or modification of this Article VIII shall not in any way
diminish any rights to indemnification of such director, officer, employee
or agent or the obligations of the Corporation arising hereunder with
respect to any action, suit or proceeding arising out of, or relating to,
any actions, transactions or facts occurring prior to the final adoption of
such modification or repeal. For purposes of this Article VIII, references
to "the Corporation" include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving corporation,
so that any person who is or was a director, officer, employee or agent of
such a constituent corporation or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
shall stand in the same position under the provisions of this Article VIII,
with respect to the resulting or surviving corporation, as he or she would
if he or she had served the resulting or surviving corporation in the same
capacity.
SECTION 6. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was or has agreed to
become a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against him or her and
incurred by him or her or on his or her behalf in any such capacity, or
arising out of his or her status as such, whether or not the Corporation
would have the power to indemnify him or her against such liability under
the provisions of this Article VIII, provided, however, that such insurance
is available on acceptable terms, which determination shall be made by a
vote of a majority of the Board of Directors.
SECTION 7. Savings Clause. If this Article VIII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify each person entitled to
indemnification under the first paragraph of this Article VIII as to all
expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes, penalties and amounts to be paid in settlement)
actually and reasonably incurred or suffered by such person and for which
indemnification is available to such person pursuant to this Article VIII
to the full extent permitted by any applicable portion of this Article VIII
that shall not have been invalidated and to the full extent permitted by
applicable law.
SECTION 8. Survival of Rights. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall
continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE IX
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation and the year of its incorporation and shall be in such form and
contain such other words and/or figures as the Board of Directors shall
determine. The corporate seal may be used by printing, engraving,
lithographing, stamping or otherwise making, placing or affixing, upon any
paper or document, by any process whatsoever, an impression, facsimile or
other reproduction of said corporate seal.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
<PAGE>
ARTICLE XI
WAIVER OF NOTICE
Whenever notice is required to be given by these By-laws or by the
Restated Certificate of Incorporation or by law, a written waiver thereof,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to notice.
ARTICLE XII
BANK ACCOUNTS, DRAFTS, CONTRACTS, ACTIVITIES, ETC.
SECTION 1. Bank Accounts and Drafts. In addition to such bank accounts
as may be authorized by the Board of Directors, the primary financial
officer or any person designated by said primary financial officer, whether
or not an employee of the Corporation, may authorize such bank accounts to
be opened or maintained in the name and on behalf of the Corporation as he
or she may deem necessary or appropriate, payments from such bank accounts
to be made upon and according to the check of the Corporation in accordance
with the written instructions of said primary financial officer, or other
person so designated by the Treasurer.
SECTION 2. Contracts. The Board of Directors may authorize any person
or persons, in the name and on behalf of the Corporation, to enter into or
execute and deliver any and all deeds, bonds, mortgages, contracts and
other obligations or instruments, and such authority may be general or
confined to specific instances.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The
Chairman, the President or any other person designated by either of them
shall have the power and authority to execute and deliver proxies, powers
of attorney and other instruments on behalf of the Corporation in
connection with the rights and powers incident to the ownership of stock by
the Corporation. The Chairman, the President or any other person authorized
by proxy or power of attorney executed and delivered by either of them on
behalf of the Corporation may attend and vote at any meeting of
stockholders of any company in which the Corporation may hold stock, and
may exercise on behalf of the Corporation any and all of the rights and
powers incident to the ownership of such stock at any such meeting, or
otherwise as specified in the proxy or power of attorney so authorizing any
such person. The Board of Directors, from time to time, may confer like
powers upon any other person.
SECTION 4. Financial Reports. The Board of Directors may appoint the
primary financial officer or other fiscal officer and/or the Secretary or
any other officer to cause to be prepared and furnished to stockholders
entitled thereto any special financial notice and/or financial statement,
as the case may be, which may be required by any provision of law. The
Corporation shall be subject to an annual audit as of the end of its fiscal
year by independent public accountants appointed by and responsible to the
Board of Directors. The appointment of such accountants shall be subject to
annual ratification by the stockholders.
ARTICLE XIII
AMENDMENTS
The Board of Directors shall have power to adopt, amend or repeal
By-laws. By-laws adopted by the Board of Directors may be repealed or
changed, and new By-laws made, by the stockholders.
