-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ckmnth8gnMQFy2Vop+1zHyT3SDx4bKoHQiRH3v8jzMe1QCmONM/4P0v7tgkKbn50 LegeAMe+Ar+iXcA1dJH1hg== 0000950136-98-000473.txt : 19980312 0000950136-98-000473.hdr.sgml : 19980312 ACCESSION NUMBER: 0000950136-98-000473 CONFORMED SUBMISSION TYPE: 8-A12G PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19980311 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: BOLLE INC CENTRAL INDEX KEY: 0001049588 STANDARD INDUSTRIAL CLASSIFICATION: OPHTHALMIC GOODS [3851] IRS NUMBER: 133934135 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12G SEC ACT: SEC FILE NUMBER: 000-23899 FILM NUMBER: 98563325 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE STREET 2: STE B 302 CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 MAIL ADDRESS: STREET 1: 555 THEODORE FREMD AVE STREET 2: STE B 302 CITY: RYE STATE: NY ZIP: 10580 8-A12G 1 REGISTRATION OF SECURITIES; SECTION 12(G) FORM 8-A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 Bolle Inc. (Exact name of registrant as specified in its charter) Delaware 13-373-4135 -------- ----------- (State of incorporation or organization) (IRS Employer Identification No.) 555 Theodore Fremd Avenue, Suite B-302 Rye, New York 10580 ------------- ----- (Address of principal executive offices) (Zip Code) Securities to be registered pursuant to Section 12(b) of the Act: Title of each class to be so registered Name of each exchange on which each class is to be registered If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. [ ] If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. [X] Securities Act registration statement file number to which this form relates: 333-40279 Securities to be registered pursuant to Section 12(g) of the Act: Common Stock, par value $.01 per share - ------------------------------------------------------------------------------ (Title of Class) INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 1. Description of Registrant's Securities to be Registered The information required by this Item 1 is incorporated by reference to Amendment No. 4 to the Registrant's Registration Statement on Form S-1 (File No. 333-40279) as filed with the Securities and Exchange Commission (the "Commission") on February 13, 1998 and to the Registrant's Prospectus, as filed with the Commission pursuant to Rule 424(b) on March 10, 1998. Item 2. Exhibits 1. Amended and Restated Certificate of Incorporation 2. Certificate of Designations of the Series B Preferred Stock 3. Amended and Restated Bylaws 4. Specimen of Stock Certificate 5. Letter Agreement dated July 9, 1997 by and among Martin E. Franklin on the one hand, and each of Robert Bolle, Maurice Bolle, Franck Bolle, Brigitte Bolle, Patricia Bolle Passaquay and Christelle Roche, on the other hand (collectively, the "Sellers"). Incorporated by reference to Exhibit 4.3 to Amendment No. 3 to the Registrant's Registration Statement on Form S-1 (Registration No. 333-40279). 6. Letter Agreement by and among Martin E. Franklin and each of the Sellers. SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. (Registrant) Bolle Inc. Date: March 11, 1998 By: /s/ Martin E. Franklin ---------------------- Name: Martin E. Franklin Title: Chairman of the Board -2- EXHIBIT INDEX 1. Amended and Restated Certificate of Incorporation 2. Certificate of Designations of the Series B Preferred Stock 3. Amended and Restated Bylaws 4. Specimen of Stock Certificate 6. Letter Agreement by and among Martin E. Franklin and each of the Sellers. EX-1 2 AMENDED & RESTATED CERTIFICATE OF INC. EXHIBIT 1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF BOLLE INC. BOLLE INC., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows: 1. The name of the corporation is BOLLE INC., and the name under which the corporation was originally incorporated is BOLLE, INC. The date of the filing of its original Certificate of Incorporation with the Secretary of State was February 3, 1997. 2. This Amended and Restated Certificate of Incorporation restates and integrates and further amends the Certificate of Incorporation of this corporation by increasing the total number of shares of stock which the Corporation shall have authority to issue to 30,000,000 shares of common stock, having a par value of $.01 per share and 200,000 shares of preferred stock having a par value of $.01 per share. 3. The text of the Certificate of Incorporation as amended or supplemented heretofore is further amended hereby to read as herein set forth in full: FIRST: The name of the Corporation (hereinafter referred to as the "Corporation") is BOLLE INC. SECOND: The address, including street, number, city and county, of the registered office of the Corporation in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle, and the name of the registered agent of the Corporation in the State of Delaware is Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 30,000,000 shares of common stock, having a par value of $.01 per share and 200,000 shares of preferred stock having a par value of $.01 per share. To the extent not otherwise provided for by, and not inconsistent with, this Certificate of Incorporation, there is hereby expressly vested in the Board of Directors the authority to fix in the resolution or resolutions providing for the issue of each series of such preferred stock, the voting power and the designations, preferences and relative, participating, operational or other rights of each such series, and the qualifications, limitations or restrictions thereof. Shares of preferred stock may be issued from time to time in one or more series as may from time to time be determined by the Board of Directors, each such series to be distinctly designated. a. Series A Preferred Stock. There shall be created a series of preferred stock of the Corporation, which shall be designated "Series A Preferred Stock" and shall consist of Sixty Four Thousand One Hundred Twenty (64,120) shares, and have the powers, designations, preferences and relative, participating, and other rights of the shares of such series, and the qualifications, limitations and restrictions thereof, as set forth below: Section 1. Dividends. The holders of the Series A Preferred Stock shall not be entitled to dividends. Section 2. Rights on Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation (any such event being hereinafter referred to as a "Liquidation"), before any distribution of assets of the Corporation shall be made to or set apart for the holders of Common Stock, the holders of Series A Preferred Stock shall be entitled to receive payment out of such assets of the Corporation in an amount equal to the greater of (i) One Thousand French Francs (FF1,000) per share of Series A Preferred Stock or (ii) the French Franc equivalent of US $172.41 per share of Series A Preferred Stock (such greater amount being referred to as the "Liquidation Preference" for the Series A Preferred Stock). If the assets of the Corporation available for distribution to the holders of the Series A Preferred Stock shall not be sufficient to make in full the payment herein required, such assets shall be distributed pro-rata among the holders of Series A Preferred Stock based on the aggregate Liquidation Preference of the shares of Series A Preferred Stock held by each such holder. If the assets of the Corporation available for distribution to the holders of Series A Preferred Stock shall exceed the distribution required to be made to the holders of Series A Preferred Stock as herein described, such excess assets shall be distributed pro-rata among the holders of Common Stock and the holders of Series A Preferred Stock shall not participate in any such excess distribution in their capacity as holders of Series A Preferred Stock. Section 3. Conversion. The holders of any share of Series A Preferred Stock shall not have the -2- right to convert any such shares into shares of Common Stock of the Corporation. Section 4. Redemption. (a) Optional Redemption. Following notice pursuant to Section 4(c) hereof given to all holders of Series A Preferred Stock during the period that shares of Series A Preferred Stock are outstanding (the "Redemption Period"), the Corporation may at the option of the Board of Directors of the Corporation, redeem, out of funds legally available therefor, in whole or in part the shares of Series A Preferred Stock. The Corporation shall effect any such redemption by paying in cash for each such share to be redeemed an amount equal to the Liquidation Preference, per share, on such shares being redeemed on the Redemption Date (as hereinafter defined) (such per share amount is hereinafter referred to as the "Redemption Amount"). (b) Mandatory Redemption. (i) Subject to the terms of the Senior Indebtedness (as defined below), on the third anniversary date from the issuance of the Series A Preferred Stock, the Corporation shall redeem, out of funds legally available therefor, all of the shares of the Series A Preferred Stock (if not previously redeemed) at the Redemption Amount per share pursuant to the terms of this Section 4 following notice pursuant to Section 4(c) hereof given to all holders of Series A Preferred Stock. (ii) Notwithstanding anything to the contrary contained herein, in the event that the Corporation's EBITDA (as defined below) exceeds US$18,400,000 for the year ended December 31, 1998 and Bollee Inc. will be in compliance with the terms of Bolle Inc.'s senior indebtedness pursuant to the terms of the credit agreement among the Corporation, the lenders executing a signature thereto and NationsBank, National Association, as Agent, entered into in connection with the Corporation becoming a separate public company as a result of a spinoff by BEC Group, Inc., as may be amended from time to time (the "Senior Indebtedness") after taking into account the redemption pursuant to the terms of this Section 4(b)(ii), to the extent that Bolle Inc. will have at least US$2,000,000 available to borrow pursuant to the terms of the Senior Indebtedness after taking into account such redemption, the Corporation shall redeem, out of funds legally available therefor, the shares of the Series A Preferred Stock (if not previously redeemed) at the Redemption Amount per share pursuant to the terms of this Section 4 herein following notice given within ten days after the Determination Date (as defined below) in respect of the year ended -3- December 31, 1998 pursuant to Section 4(c) hereof given to all holders of Series A Preferred Stock. The determination of EBITDA required to be made under this Section 4, shall be made by the Corporation within ninety days following the Corporation's year end (the "Determination Date"). (iii) Notwithstanding anything to the contrary contained herein, in the event that the Corporation's EBITDA exceeds US$24,700,000 for the year ended December 31, 1999 Bolle Inc. will be in compliance with the terms of the Senior Indebtedness after taking into account the redemption pursuant to the terms of this Section 4(b)(iii), to the extent that Bolle Inc. will have at least US$2,000,000 available to borrow pursuant to the terms of the Senior Indebtedness after taking into account such redemption, the Corporation shall redeem, out of funds legally available therefor, the shares of the Series A Preferred Stock (if not previously redeemed) at the Redemption Amount per share pursuant to the terms of this Section 4 herein following notice given within ten days after the Determination Date in respect of year ended December 31, 1999 pursuant to Section 4(c) hereof given to all holders of Series A Preferred Stock. (iv) For purposes of this Section 4, "EBITDA" means, with respect to the Corporation and its subsidiaries for any period of computation thereof, the sum of, without duplication, (i) consolidated net income, (ii) consolidated interest expense, (iii) taxes on income, (iv) amortization, and (v) depreciation, all determined on a consolidated basis in accordance with generally accepted accounting principles on a consistent basis. (c) Redemption Procedures. In the event of any redemption pursuant hereto, the Corporation shall effect such redemption as described below. During the Redemption Period, and at least 10 days prior to the date fixed for any redemption of Series A Preferred Stock pursuant to Section 4(a) or 4(b) above (the "Redemption Date"), written notice shall be sent to each holder of record of Series A Preferred Stock to be redeemed, notifying such holder of the redemption to be effected, specifying the Redemption Date, the Redemption Amount, the place at which payment may be obtained and calling upon such holder to surrender to the Corporation, in the manner and at the place designated, his certificate or certificates representing the shares to be redeemed (the "Redemption Notice"). On or after the Redemption Date, each holder of Series A Preferred Stock to be redeemed shall surrender to the Corporation the certificate or certificates representing such -4- shares, in the manner and at the place designated in the Redemption Notice, and thereupon the Redemption Amount of such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be cancelled. In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. (d) Status of Redeemed or Purchased Shares. Any shares of the Series A Preferred Stock at any time purchased, redeemed or otherwise acquired by the Corporation shall not be reissued and shall be retired. (e) Sale of Business. In the event that the Corporation does not give notice on or before the third anniversary date from the issuance of the Series A Preferred Stock, that it will redeem the Series A Preferred Stock in full pursuant to the provisions of Section 4(c) hereof, the holders of more than 90% of the Series A Preferred Stock shall have the right, until the Series A Preferred Stock has been redeemed, (i) subject to the terms and provisions of the agreements entered into in connection with the Senior Indebtedness, to appoint a majority of the members of the Board of Directors of the Corporation, so long as the Corporation is privately or closely held, and (ii) subject to the terms and provisions of the agreements entered into in connection with the Senior Indebtedness, to cause the Corporation to use commercially reasonable efforts to either obtain cash in order to redeem in full the Series A Preferred Stock or to effect a commercially reasonable sale of the Corporation's assets or the merger, consolidation or other reorganization of the Corporation as soon as reasonably practicable thereafter. SECTION 5. Voting Rights. Subject to the provisions of Section 4(c)(i) hereof, the holders of the Series A Preferred Stock shall not be entitled to vote except as to matters in respect of which they shall at the time be indefeasibly vested by statute with such right. SECTION 6. Protective Provisions. So long as any shares of Series A Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least 90% of the then outstanding shares of Series A Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series A -5- Preferred Stock so as to affect adversely the shares of such series; and (ii) the Corporation shall not issue any class or series of Preferred Stock that ranks Senior to or pari passu with the Series A Preferred Stock with respect to dividend, redemption or liquidation rights. SECTION 7. TRANSFERABILITY. The holders of shares of the Series A Preferred Stock are entitled to transfer shares of the Series A Preferred Stock to any of the other holders of shares of Series A Preferred Stock, subject to strict compliance with all applicable laws. FIFTH: The name and the mailing address of the incorporator is as follows: Name Mailing Address ---- --------------- Peter H. Trembath c/o BEC Group, Inc. 1601 Valley View Lane Dallas, TX 75234 SIXTH: The Corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this Corporation, as the case may be, and also on this Corporation. -6- EIGHTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the By-laws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning to wit, the total number of directors which the Corporation would have if there were no vacancies. 2. After the original or other By-laws of the Corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the By-laws of the Corporation may be exercised by the Board of Directors of the Corporation; provided, however, that any provision for the classification of directors of the Corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in the initial By-laws or in by-laws adopted by the stockholders entitled to vote of the Corporation unless provisions for such classification shall be set forth in this Certificate of Incorporation. 3. Whenever the Corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the Corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificates of incorporation shall entitle the holder thereof to the right to vote at any meeting of the stockholders except as the provisions of paragraph (2) of the subsection (b) of (section) 242 of the General Corporation Law of the State of Delaware shall otherwise require; -7- provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. 4. Elections of directors need not be by written ballot. NINTH: The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. TENTH: (a) The Corporation shall, to the fullest extent permitted by the General Corporation Law, as the same may be amended and supplemented, indemnify any and all persons whom it shall have the power to indemnify under the General Corporation Law from and against any and all of the expenses, liabilities or other matters referred to in or covered by the General Corporation Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (b) Expenses incurred in defending a civil or criminal action, suit or proceeding shall (in the case of any action, suit or proceeding against a director of the Corporation) or may (in the case of any action, suit or proceeding against an officer, trustee, employee or agent) be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article. (c) No director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as director, except for any matter in respect of which such director (a) shall be liable under Section 174 of the General Corporation Law or successor provisions thereto, or (b) shall be liable by reason that, in addition to any and all other requirements for liability, he -8- (i) shall have breach his duty of loyalty to the Corporation or its stockholders; (ii) shall not have acted in good faith or, in failing to act, shall not have acted in good faith; (iii) shall have acted in a manner involving intentional misconduct or a knowing violation of the law or, in failing to act, shall have acted in a manner involving intentional misconduct or knowing violation of the law; or (iv) shall have derived an improper personal benefit. ELEVENTH: The Board of Directors shall have the power to make, add to, delete from, alter and repeal the Corporation's By-laws. TWELFTH: The Corporation expressly elects not to be governed by Section 203 of the Delaware General Corporation Law. THIRTEENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed after authorization by the Board of Directors and the affirmative vote of the holders of record of a majority of all of the issued and outstanding shares of the Corporation entitled to vote in respect thereof, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article Fourteenth. 4. This Amended and Restated Certificate of Incorporation was duly adopted by unanimous written consent of the holders of the Corporation's common stock and Series A Preferred Stock in accordance with the applicable provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware. -9- IN WITNESS WHEREOF, said BOLLE INC. has caused this certificate to be signed and attested by Ian G.H. Ashken, its Chief Financial Officer, this 12th day of February, 1998. BOLLE INC. By: /s/ Ian G.H. Ashken -------------------- Name: Ian G.H. Ashken Title: Chief Financial Officer EX-2 3 CERTIFICATE OF DESIGNATIONS EXHIBIT 2 CERTIFICATE OF DESIGNATIONS OF THE SERIES B PREFERRED STOCK OF BOLLE INC. ----------------------------------- Pursuant to Section 151 of the General Corporation Law of the State of Delaware ----------------------------------- The undersigned, Peter H. Trembath, does hereby certify as follows: FIRST: That he is the duly elected and acting Secretary of Bolle Inc., a Delaware corporation (the "corporation"). SECOND: That the following resolution was duly adopted by the Board of Directors of the corporation: RESOLVED, that pursuant to authority conferred upon the Board of Directors of the corporation in accordance with the General Corporation Law of the State of Delaware and the provisions of the Restated Certificate of Incorporation of the corporation (the "Restated Certificate"), there is hereby created a new series of preferred stock of the corporation, which shall be designated "Series B Preferred Stock" and shall consist of Ten Thousand (10,000) shares, and have the powers, designations, preferences and relative, participating, and other rights of the shares of such series, and the qualifications, limitations and restrictions thereof, as set forth below. Section 1. Dividends. (a) The holders of the Series B Preferred Stock, shall be entitled to accrue cumulative cash dividends, whether or not declared by the Board of Directors of the corporation, at the dividend rate per annum as set forth in Section 1(b) below and no more, on each share of Series B Preferred Stock, payable semi-annually on June 30 and December 31 of each year commencing December 31, 1997, such dividends shall be cumulative, so that if at any time dividends per semi-annum at the applicable dividend rate, on each share, shall not have been declared and paid, or set apart for payment, for all preceding dividend periods, the deficiency shall be declared and paid, or set apart for payment, before any dividends shall be declared and paid, or set apart for payment, on the common stock (the "Common Stock") of the corporation or the Series A Preferred Stock (the "Series A Stock") of the corporation. (b) The dividend rate (the "Dividend Rate") for the Series B Preferred Stock shall be at the per annum rate of: (i) 5% of the Liquidation Preference per share per annum during the period commencing on the date of issuance of shares of the Series B Preferred Stock through December 31, 1997; (ii) 6% of the Liquidation Preference per share per annum during the period commencing January 1, 1998 through June 30, 1998; (iii) 7% of the Liquidation Preference per share per annum during the period commencing July 1, 1998 through December 31, 1998; (iv) 8% of the Liquidation Preference per share per annum during the period commencing January 1, 1999 through June 30, 1999; (v) 9% of the Liquidation Preference per share per annum during the period commencing July 1, 1999 through December 31, 1999; and (vi) 10% of the Liquidation Preference per share per annum commencing January 1, 2000 and thereafter until the Series B Preferred Stock shall have been redeemed. (c) Any unpaid dividends (whether declared or accruing) on Series B Preferred Stock will bear interest at the applicable Dividend Rate commencing from the date that such dividend has accrued up to and including the date on which such dividend is paid. Holders of Series B Preferred Stock will not receive any dividends other than the preferred dividends provided for in this Section 1, and will not participate with the Common Stock in the payment of dividends. (d) Subject to the provisions of this Section 1(d), the corporation will use its commercially reasonable efforts in good faith to declare and pay accrued dividends on the shares of Series B Preferred Stock as set forth in this Section 1. The corporation shall only declare or pay any dividends on the Series B Preferred Stock out of funds legally available therefor and to the extent that the corporation is permitted to declare or pay such 2 dividends under the terms and conditions of its senior indebtedness pursuant to the terms of the credit agreement among the corporation, the lenders executing a signature thereto and NationsBank, National Association, as Agent, entered into in connection with the corporation becoming a separate public company as a result of a spinoff by BEC Group, Inc., as may be amended from time to time (the "Senior Indebtedness"). SECTION 2. Rights on Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation (any such event being hereinafter referred to as a "Liquidation"), before any distribution of assets of the corporation shall be made to or set apart for the holders of Common Stock or Series A Stock, the holders of Series B Preferred Stock shall be entitled to receive payment out of such assets of the corporation in an amount equal to Five Thousand Five Hundred French Francs (FF5,500) per share of Series B Preferred Stock (such amount being referred to as the "Liquidation Preference" for the Series B Preferred Stock), plus any accumulated and unpaid dividends thereon (whether or not earned or declared) on the Series B Preferred Stock. If the assets of the corporation available for distribution to the holders of Series B Preferred Stock shall not be sufficient to make in full the payment herein required, such assets shall be distributed pro-rata among the holders of Series B Preferred Stock based on the aggregate Liquidation Preference of the shares of Series B Preferred Stock held by each such holder. If the assets of the corporation available for distribution to the holders of Series B Preferred Stock shall exceed the distribution required to be made to the holders of Series B Preferred Stock as herein described, such excess assets shall be distributed pro-rata among the holders of Common Stock and the holders of Series B Preferred stock shall not participate in any such excess distribution. SECTION 3. Conversion. The holders of any share of Series B Preferred Stock shall not have the right to convert any such shares into shares of Common Stock of the corporation. Section 4. Redemption. (a) Optional Redemption. (i) Cash Redemption. Following notice pursuant to Section 4(c)(ii) hereof given to all holders of Series B Preferred Stock during the period (the "Redemption Period") so long as shares of Series B Preferred Stock are outstanding, the corporation may at the option of the Board of Directors of the corporation, redeem, out of funds legally available therefor, in whole or in part the shares of Series B Preferred Stock. The corporation shall effect any such redemption 3 by paying in cash (the "Cash Redemption") for each such share to be redeemed an amount equal to the Liquidation Preference, per share, plus any accumulated and unpaid dividends thereon (whether or not earned or declared) on such shares to the Redemption Date (as hereinafter defined) (such total amounts are hereinafter referred to as the "Redemption Price"). (ii) Debt Redemption. Following notice pursuant to Section 4(c)(iii) below hereof given to all holders of Series B Preferred Stock during the period (the "Debt Redemption Period") commencing January 1, 1998 and so long as shares of Series B Preferred Stock are outstanding, the corporation may, at the option of the Board of Directors of the corporation, redeem in whole or in part the shares of Series B Preferred Stock. The corporation shall effect any such redemption (the "Debt Redemption") by issuing to the holders of the Series B Preferred Stock a subordinated debt instrument (the "Subordinated Debt"). Except as otherwise provided in Section 4(e) below, the Subordinated Debt shall contain substantially the same powers, designations, preferences and relative, participating, or other rights, and qualifications, limitations and restrictions as the Series B Preferred Stock including, but not limited to, mandatory redemption and Cash Redemption rights, Liquidation rights and the protections provided in Section 6 hereof. (b) Mandatory Redemption. Notwithstanding anything contained herein to the contrary, the corporation shall redeem, out of funds legally available therefor, the Series B Preferred Stock (if not previously redeemed) pursuant to the terms of Section 4 herein following notice pursuant to Section 4(c)(ii) hereof given to all holders of Series B Preferred Stock, upon the earlier occurrence of (i) on the earlier of (A) the third anniversary date from the issuance of the Series B Preferred Stock if redemption is then permitted under the terms and conditions of the corporation's Senior Indebtedness, (B) such later date as redemption is first permitted under the terms and conditions of the corporation's Senior Indebtedness; or (ii) the closing of any equity financing by the corporation (a "Public Offering"), but only to the extent of the net cash proceeds of such financing by the corporation and no more than the Redemption Price of the then outstanding shares of Series B Preferred Stock, and provided further, that such redemption would not violate any of the terms and conditions of the corporation's Senior Indebtedness; or (iii) a Change of Control (as defined in the agreements relating to the corporation's Senior Indebtedness), which has resulted in the corporation's payment in full of all amounts due with respect to 4 its Senior Indebtedness. Subject to the provisions of this Section 4(b), the corporation will use its commercially reasonable efforts in good faith to redeem the Series B Preferred Stock when required to be redeemed pursuant to the terms of this Section 4(b). The corporation shall effect any such Cash Redemption by paying in cash for each such share to be redeemed an amount equal to the Liquidation Preference, per share, plus any accumulated and unpaid dividends thereon (whether or not earned or declared) on such shares to the Redemption Date. The corporation shall use its commercially reasonable efforts to close a Public Offering during 1998. (c) Redemption Procedures. (i) General. In the event of any redemption pursuant hereto, the corporation shall effect such redemption as follows. The number of shares subject to redemption shall be allocated pro rata among the holders of outstanding shares of Series B Preferred Stock based upon the number of shares held by each such holder. (ii) Cash Redemption Procedures. During the Redemption Period, and at least 10 days prior to the date fixed for any redemption of Series B Preferred Stock pursuant to Section 4(a)(i) above (the "Redemption Date"), written notice shall be sent to each holder of record of Series B Preferred Stock to be redeemed, notifying such holder of the redemption to be effected, specifying the Redemption Date, the Redemption Price, the place at which payment may be obtained and calling upon such holder to surrender to the corporation, in the manner and at the place designated, his certificate or certificates representing the shares to be redeemed (the "Redemption Notice"). On or after the Redemption Date, each holder of Series B Preferred Stock to be redeemed shall surrender to the corporation the certificate or certificates representing such shares, in the manner and at the place designated in the Redemption Notice, and thereupon the Redemption Price of such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be cancelled. In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. (iii) Debt Redemption Procedures. During the Debt Redemption Period, and at least 10 days prior to the date fixed for any redemption of Series B Preferred Stock pursuant to Section 4(a)(ii) above (the "Debt Redemption Date"), written notice shall be sent to each holder of record of Series B Preferred Stock, notifying such holder of the redemption to be effected, specifying 5 the Debt Redemption Date, and calling upon such holder to surrender to the corporation, in the manner and at the place designated, his certificate or certificates representing the shares to be redeemed (the "Debt Redemption Notice"). On or after the Debt Redemption Date, each holder of Series B Preferred Stock to be redeemed shall surrender to the corporation the certificate or certificates representing such shares, in the manner and at the place designated in the Debt Redemption Notice, and thereupon the Subordinated Debt instrument shall be delivered to the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be cancelled. In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. (iv) From and after the close of business on the Redemption Date or the Debt Redemption Date, as the case may be, unless there shall have been a default in payment of the Redemption Price or issuance of the Subordinated Debt instrument, as the case may be, all rights of the holders of the shares of Series B Preferred Stock designated for redemption as holders of Series B Preferred Stock (except the right to receive the Redemption Price without interest or the Subordinated Debt instrument, as the case may be, upon surrender of their certificate or certificates) shall cease with respect to such shares, and such shares shall not thereafter be transferred on the books of the corporation or be deemed to be outstanding for any purpose whatsoever. (d) Status of Redeemed or Purchased Shares. Any shares of the Series B Preferred Stock at any time purchased, redeemed or otherwise acquired by the corporation shall not be reissued and shall be retired. (e) Gross-Up Factor. In the event of any Debt Redemption pursuant to Section 4(a)(ii) above, the interest rates from time to time payable on such Subordinated Debt shall be equal to the Dividend Rates in effect from time to time per Section 1(b) increased by a factor based upon the amount directly attributable to the corporation's tax savings expected to be received from the corporation's deduction of interest payments in respect of the Subordinated Debt in computing the corporation's taxable income in respect of each year that the Subordinated Debt is outstanding (the "Gross Up Factor"). The determinations required to be made under this Section 4(e), including whether and when a Gross-Up Factor is required and the amount of such Gross-Up Factor and the marginal combined Federal, state and local income tax rate and other assumptions to be utilized in arriving at such determination, shall 6 be made by the corporation's independent auditors (the "Accounting Firm"), which shall provide detailed supporting calculations both to the corporation and the holders of the Subordinated Debt within ninety (90) days after the corporation's year end. All fees and expenses of the Accounting Firm shall be born solely by the corporation. Any Gross-Up Factor, as determined pursuant to this Section 4(e), shall accrue for the benefit to the holders of the Subordinated Debt as of the relevant dates set forth in such Section 1(b) and all accrued interest and Gross Up Factor shall accumulate and be paid in accordance with Section 1, including (without limitation) the provisions of Section 1(c). Any determination by the Accounting Firm shall be binding upon the corporation and the holders of the Subordinated Debt. Section 5. Voting Rights. The holders of the Series B Preferred Stock shall not be entitled to vote except as to matters in respect of which they shall at the time be indefeasibly vested by statute with such right. Section 6. Protective Provisions. (a) So long as any shares of Series B Preferred Stock are outstanding, the corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least 90% of the then outstanding shares of Series B Preferred Stock: (i) alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock so as to affect adversely the shares of such series; (ii) declare or pay a dividend or otherwise make a distribution on any security issued by the corporation which is junior to the Series B Preferred Stock including the Series A Stock with respect to dividends or upon liquidation (other than dividends or distributions payable in Common Stock or other securities or rights convertible into or entitling the holder thereof to receive, directly or indirectly, additional shares of Common Stock of the corporation). (iii) the corporation shall not enter into any agreements that prohibit the corporation from declaring or paying dividends hereunder or redeeming the Series B Preferred Stock other than the Senior Indebtedness and any other agreements in effect as of the date of issuance of the Series B Preferred Stock. (iv) the corporation shall not issue any class or series of Preferred Stock that ranks Senior to or pari 7 passu with the Series B Preferred Stock with respect to dividend, redemption or liquidation rights. (b) in the event that the corporation does not redeem the Series B Preferred Stock for cash in full on or before the third anniversary date from the issuance of the Series B Preferred Stock, the corporation shall be prohibited from issuing or incurring any Indebtedness for Money Borrowed (as defined below) which ranks senior to or pari passu with the Series B Preferred Stock, other than senior bank indebtedness (including Senior Indebtedness) not to exceed $30 million in theaggregate, until the corporation redeems for cash in full the Series B Preferred Stock. For purposes of this Section 6(iv), Indebtedness for Money Borrowed shall mean all indebtedness in respect of money borrowed, evidenced by a promissory note, bond, debenture or similar written obligation for the payment of money, other than trade payables, capital leases, the deferred purchase price of any property or asset, conditional sales or similar title retention agreements incurred in the ordinary course of business. SECTION 7. Transferability. The holders of shares of the Series B Preferred Stock are entitled to transfer shares of the Series B Preferred Stock, subject to strict compliance with all applicable laws. SECTION 8. Priority. The Series B Preferred Stock ranks senior to the Series A Stock with respect to dividend, redemption and liquidation rights and otherwise. IN WITNESS WHEREOF, Bolle Inc. has caused this Certificate of Designations of the Series B Preferred Stock to be signed by Peter H. Trembath, its Secretary, this 2nd day of March, 1998. BOLLE INC. By: /s/ Peter H. Trembath ----------------------------- Name: Peter H. Trembath Title: Secretary EX-3 4 AMENDED & RESTATED BYLAWS EXHIBIT 3 BOLLE INC. Incorporated under the Laws of the State of Delaware BY-LAWS ARTICLE I OFFICES The registered office of Bolle Inc. (the "Corporation") in Delaware shall be at 1013 Centre Road in the City of Wilmington, County of New Castle, in the State of Delaware, and Corporation Service Company shall be the registered agent of this Corporation in charge thereof. The Corporation may also have such other offices at such other places, within or without the State of Delaware, as the Board of Directors may from time to time designate or the business of the Corporation may require. ARTICLE II STOCKHOLDERS SECTION 1. ANNUAL MEETINGS. Subject to change by resolution of the Board of Directors, the annual meeting of the Stockholders of the Corporation for the purpose of electing directors and for the transaction of such other business as may be brought before the meeting shall be held on the 30th day of June of each year, or as soon after such date as may be practicable. If said day be a legal holiday, said meeting shall be held on the next succeeding business day. The meeting may be held at such time and such place within or without the State of Delaware as shall be fixed by the Board of Directors and stated in the notice of the meeting. At the annual meeting any business may be transacted and any corporate action may be taken, whether stated in the notice of meeting or not, except as otherwise expressly provided by statute or the Certificate of Incorporation. SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders for any purpose may be called at any time by a majority of the Board of Directors, by the Chairman of the Board, or by the President, and shall be called by the Chairman of the Board or by the President at the request of the holders of a majority of the outstanding shares of capital stock entitled to vote. Special meetings shall be held at such place or places within or without the State of Delaware as shall from time to time be designated by the Board of Directors and stated in the notice of such meeting. At a special meeting no business shall be transacted and no corporate action shall be taken other than that stated in the notice of the meeting. SECTION 3. NOTICE OF MEETINGS. Except as otherwise expressly required by law or the Certificate of Incorporation of the Corporation, written notice stating the place and time of the meeting and the purpose or purposes of such meeting, shall be given by the Secretary to each stockholder entitled to vote thereat, by personal delivery or by mailing the same to him at his address as it appears on the records of the Corporation not less than ten (10) nor more than sixty (60) days prior to the meeting. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall attend such meeting in person or by proxy; and if any stockholder shall, in person or by attorney thereunto duly authorized, waive notice of any meeting, in writing or by telephone or facsimile, whether before or after such meeting be held, the notice thereof need not be given to him. The attendance of any stockholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Notice of any adjourned meeting of stockholders need not be given except as provided in Section 5 of this Article II. SECTION 4. QUORUM. Any number of stockholders, together holding at least a majority of the capital stock of the Corporation issued and outstanding and entitled to vote, who shall be present in person or represented by proxy at any meeting duly called, shall constitute a quorum for the transaction of all business, except as otherwise provided by law, by the Certificate of Incorporation or by these By-Laws. Where a separate vote by a class or classes is required, a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and the affirmative vote of the majority of shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class. SECTION 5. ADJOURNMENT. At any meeting of stockholders, whether or not there shall be a quorum present, the holders of a majority of the shares voting at the meeting, whether present in person at the meeting or represented by proxy at the meeting, may adjourn the meeting from time to time. Except as provided by law, notice of such adjourned meeting need not be given otherwise than by announcement of the time and place of such adjourned meeting at the meeting at which the adjournment is taken. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally called. SECTION 6. CONDUCT. The Chairman of the Board or, in his absence or non-election, the Vice Chairman or, in his absence or non-election, the President or, in the absence of both the foregoing officers, a Vice President shall call meetings of the stockholders to order and shall act as Chairman of such meetings. In the absence of all of the foregoing officers, holders of a 2 majority in number of the shares of the capital stock of the Corporation present in person or represented by proxy and entitled to vote at such meeting shall elect a Chairman, who may be the Secretary of the Corporation. To the maximum extent permitted by the law, such presiding person shall have the power to set procedural rules, including but not limited to rules respecting the time allotted to allow shareholders to speak, governing all aspects of the conduct of such meetings. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders; but in the absence of the Secretary, the Chairman may appoint any person to act as secretary of the meeting. SECTION 7. VOTING. Each stockholder shall, except as otherwise provided by law or by the Certificate of Incorporation, at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock entitled to vote held by such stockholder, but no proxy shall be voted on after three years from its date, unless said proxy provides for a longer period. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a vote of a majority of the votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the Certificate of Incorporation and these By-Laws. SECTION 8. STOCKHOLDERS LIST. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make a complete list of the stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order with the address of each and the number of shares held by each, which shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole thereof and may be inspected by any stockholder who is present. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the ledger, the list required by this Section 8 of Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. SECTION 9. ADDRESS OF STOCKHOLDERS. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served upon or mailed to him, and if any stockholder shall fail to designate such address, corporate notices may be served upon 3 him by mail directed to him at his last known post office address. SECTION 10. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty days (60) prior to any other action, and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of and to vote at such meeting and any adjournment thereof, to express consent to any such corporate action, to receive payment of such dividend or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as aforesaid. If the stock transfer books are to be closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting in the case of a merger or consolidation, the books shall be closed at least twenty days before such meeting. SECTION 11. INSPECTORS OF ELECTION. The Board of Directors may at any time appoint one or more persons to serve as Inspectors of Election at the next succeeding annual meeting of stockholders or at any other meeting or meetings and the Board of Directors may at any time fill any vacancy in the office of Inspector. If the Board of Directors fails to appoint Inspectors or this office becomes vacant and is not filled by the Board of Directors, the Chairman of any meeting of the stockholders may appoint one or more temporary Inspectors for such meeting. All proxies shall be filed with the Inspectors for such meeting. All proxies shall be filed with the Inspectors of Election of the meeting before being voted upon. SECTION 12. ACTION BY CONSENT. Unless otherwise provided in the Certificate of Incorporation or restricted by the rules of the National Association of Securities Dealers, Inc., any action required to be taken at any meeting of stockholders, or any action which may be taken at any meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the 4 Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. ARTICLE III BOARD OF DIRECTORS SECTION 1. GENERAL POWERS. The property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors. Any business may be transacted and any corporate action may be taken at any regular or special meeting of the Board of Directors at which a quorum shall be present, whether such business or proposed action be stated in the notice of such meeting or not, unless special notice of such business or proposed action shall be required by statute. The Board of Directors shall have the power and authority to authorize the officers of the Corporation to enter into such agreements as the Board of Directors shall deem appropriate including the power and authority to authorize the seal of the Corporation to be affixed to all papers that may require it. SECTION 2. NUMBER, QUALIFICATION AND TERM OF OFFICE. The number of directors shall be at least two and not more than twelve, except as may otherwise be provided in the Certificate of Incorporation of the Corporation. Directors need not be stockholders. The directors shall be elected by the stockholders at the annual meeting of stockholders. Each director chosen at an annual meeting shall, except as hereinafter provided, hold office until the next annual election and until his successor shall have been elected and shall qualify, or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. The Chairman of the Board, if one be elected, and the Vice Chairman of the Board, if one be elected, shall be chosen from among the directors. The number of directors may be increased or decreased by action of the directors. SECTION 3. QUORUM AND MANNER OF ACTION. Except as otherwise provided by law or these By-Laws, a majority of the entire Board of Directors shall be required to constitute a quorum for the transaction of business at any meeting. At any meeting at which a quorum is present, the vote of a majority of the members present shall be the act of the Board of Directors unless the act of a greater number is specifically required by law or by the Certificate of Incorporation or these By-Laws. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time until a quorum be had. 5 Notice of any adjourned meeting need not be given. The directors shall act only as a board and individual directors shall have no power as such. SECTION 4. NOTICE AND PLACE OF MEETINGS. The Board of Directors may hold its meetings, have one or more offices and keep the books and records of the Corporation at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be specified or fixed in the respective notices or waivers of notice thereof. Notice of any special meeting, and, except as the Board of Directors may otherwise determine by resolution, notice of any regular meeting also, shall be mailed to each director addressed to him at his residence or usual place of business at least three days before the day on which the meeting is to be held, or if delivered to him personally, or transmitted by telecopies, overnight mail, telegraph, cable, wireless, telephone or orally, not later than twenty-four hours before the day on which the meeting is to be held. No notice of the annual meeting of the Board of Directors shall be required if it is held immediately after the annual meeting of the stockholders and if a quorum is present. SECTION 5. REGULAR MEETINGS. A regular meeting of the Board of Directors shall be held for the election of officers and the transaction of other business as soon as practicable after each annual meeting of stockholders, and other regular meetings of said Board shall be held at such times and places as said Board shall direct. SECTION 6. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or by the President. SECTION 7. ACTION BY CONSENT. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or committee. SECTION 8. CONDUCT. At each meeting of the Board of Directors, the Chairman of the Board or in his absence, the Vice Chairman of the Board, or in his absence, the President, or in his absence or non-election, a director chosen by a majority of the directors present shall act as Chairman. The Secretary or, in his absence, an Assistant Secretary or, in the absence of both the Secretary and an Assistant Secretary, any person appointed by the Chairman shall act as Secretary of the meeting SECTION 9. RESIGNATIONS. Any director of the Corporation may resign at any time by giving written notice to the Board of Directors, the President or the Secretary of the Corporation. The resignation of any director shall take effect at the time specified therein; and unless otherwise specified 6 therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 10. REMOVAL OF DIRECTORS. Except as otherwise provided by law, any director may be removed with or without cause, by the affirmative vote of a majority of the shares of capital stock entitled to vote, either by written consent or by consents or at any special meeting of the stockholders called for that purpose, and the office of such director shall forthwith become vacant. SECTION 11. VACANCIES. Any vacancy in the Board of Directors caused by death, resignation, removal, disqualification, an increase in the number of directors or any other cause shall be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, provided, however, that the stockholders removing any director may at the same meeting fill the vacancy caused by such removal, and provided, further, that if the directors fail to fill any such vacancy, the stockholders may at any special meeting called for that purpose fill such vacancy. Directors chosen in accordance with this Section 11 of Article III shall hold office until the next annual election of directors and until their successors are duly elected and qualified, or until their earlier resignation or removal. SECTION 12. COMPENSATION OF DIRECTORS. The directors shall not receive any stated salary for their services as directors. However, directors may receive such reasonable sums for their services and expenses as may be directed by resolution of the Board; provided that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for their services and expenses. SECTION 13. PARTICIPATION IN MEETINGS. Members of the Board of Directors or of any committee may participate in any meeting of the Board or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 14. INTERESTED DIRECTORS. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted by 7 such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV COMMITTEES SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors may, by resolution passed by a majority of the whole Board, designate two or more of their number to constitute an Executive Committee to hold office at the pleasure of the Board, which Committee shall, during the intervals between meetings of the Board of Directors, have and exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, subject only to such restrictions or limitations as the Board of Directors may from time to time specify, or as limited by the Delaware Corporation Law, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. Any member of the Executive Committee may be removed at any time, with or without cause, by a resolution of a majority of the whole Board of Directors. Any person ceasing to be a director shall ipso facto cease to be a member of the Executive Committee. Any vacancy in the Executive Committee occurring from any cause whatsoever may be filled from among the directors by a resolution of a majority of the whole Board of Directors. SECTION 2. AUDIT COMMITTEE. The Board of Directors shall, by resolution passed by a majority of the whole Board, designate two or more of their number to constitute an Audit Committee. 8 Any member of the Audit Committee may be removed at any time, with or without cause, by a resolution of a majority of the whole Board of Directors. Any person ceasing to be a director shall ipso facto cease to be a member of the Executive Committee. Any vacancy in the Audit Committee occurring from any cause whatsoever may be filled from among the directors by a resolution of a majority of the whole Board of Directors. SECTION 3. OTHER COMMITTEES. Other committees, whose members need not be directors, may be appointed by the Board of Directors or the Executive Committee, which committees shall hold office for such time and have such powers and perform such duties as may from time to time be assigned to them by the Board of Directors or the Executive Committee. Any member of such a committee may be removed at any time, with or without cause, by the Board of Directors or the Executive Committee. Any vacancy in a committee occurring from any cause whatsoever may be filled by the Board of Directors or the Executive Committee. SECTION 4. RESIGNATION. Any member of a committee may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective unless so specified therein. SECTION 5. QUORUM. A majority of the members of a committee shall constitute a quorum. The act of a majority of the members of a committee present at any meeting at which a quorum is present shall be the act of such committee. The members of a committee shall act only as a committee, and the individual members thereof shall not have any powers as such. SECTION 6. RECORD OF PROCEEDINGS, ETC. Each committee shall keep a record of its acts and proceedings, and shall report the same to the Board of Directors when and as required by the Board of Directors. SECTION 7. ORGANIZATION, MEETINGS, NOTICES, ETC. A committee may hold its meetings at the principal office of the Corporation, or at any other place which a majority of the committee may at any time agree upon. Each committee may make such rules as it may deem expedient for the regulation and carrying on of its meetings and proceedings. Unless otherwise ordered by the Executive Committee, any notice of a meeting of such committee may be given by the Secretary of the Corporation or by the chairman of the committee and shall be sufficiently given if mailed to each member at his residence or usual place of 9 business at least two days before the day on which the meeting is to be held, or if sent to him by telegraph, cable, wireless, telephone or orally not later than twenty-four hours before the time at which the meeting is to be held. SECTION 8. COMPENSATION. The members of any committee shall be entitled to such compensation as may be allowed them by resolution of the Board of Directors. ARTICLE V OFFICERS SECTION 1. NUMBER. The officers of the Corporation shall be a Chairman of the Board, a Vice Chairman of the Board, a Chief Executive Officer, a Chief Financial Officer and a Secretary. In addition, the Board may elect one or more Vice Presidents, Treasurers, Assistant Treasurers, Assistant Secretaries and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article V. Any number of offices may be held by the same person, as the directors may determine. SECTION 2. ELECTION, TERM OF OFFICE AND QUALIFICATIONS. The officers, except as provided in Section 3 of this Article V, shall be elected annually by the Board of Directors at their first meeting after each annual meeting of the stockholders of the Corporation. Each officer, except such officers as may be appointed in accordance with the provisions of Section 3 of this Article V, shall hold office until his successor shall have been duly elected and qualified, or until his death or until he shall have resigned or shall have become disqualified or shall have been removed in the manner hereinafter provided. SECTION 3. SUBORDINATE OFFICER. The Board of Directors or the Chief Executive Officer may from time to time appoint such other officers (including, without limitation, a Treasurer, Assistant Treasurers, or Assistant Secretaries), and such agents and employees of the Corporation as may be deemed necessary or desirable. Such officers, agents and employees shall hold office for such period and upon such terms and conditions, have such authority and perform such duties as provided in these By-Laws or as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Board of Directors or the Chief Executive Officer may from time to time authorize any officer to appoint and remove agents and employees and to prescribe the powers and duties thereof. SECTION 4. REMOVAL. Any officer of the Corporation may be removed, either with or without cause, by the affirmative vote of a majority of the Board of Directors. SECTION 5. RESIGNATIONS. Any officer may resign at any time by giving written notice to the Board of Directors, the 10 Chief Executive Officer or the Secretary. Any such resignation shall take effect at the date of receipt of such notice or at any later time specified therein; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 6. VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed in these By-Laws for regular election or appointment to such office. SECTION 7. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be the Chief Executive Officer of the Corporation and shall preside, if present, at all meetings of the stockholders and shall preside, if present, at all meetings of the stockholders and at all meetings of the Board of Directors and shall perform such other duties and have such other powers as from time to time may be assigned by the Board of Directors or prescribed by these By-Laws. SECTION 8. VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board shall, at the request of the Chairman of the Board or in his absence or disability, perform the duties of the Chairman of the Board and when so acting shall, have all the powers of, and be subject to all restrictions upon, the Chairman of the Board and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Chairman of the Board or prescribed by these By-Laws. SECTION 9. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these By-Laws, have such powers incident to the office of Chief Executive Officer and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. SECTION 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall be responsible to the Board of Directors and the Chief Executive Officer for all financial control and internal audit of the Corporation and its subsidiaries. He shall perform such other duties as may be assigned to him by the Board of Directors, the Chief Executive Officer or prescribed by these By-Laws, and shall be responsible to a designated Vice President only for the routine administrative matters pertaining to the duties of his office. The Chief Financial Officer shall, in the absence of an appointed Treasurer, perform the duties and functions of the Treasurer. SECTION 11. VICE PRESIDENT. A Vice President may sign with the Chief Financial Officer or the Secretary or an Assistant 11 Secretary certificates of stock of the Corporation and shall have such other powers and shall perform such other duties as from time to time may be assigned to him by the Board of Directors or the Chief Executive Officer or prescribed by these By-Laws. SECTION 12. SECRETARY. The Secretary shall keep or cause to be kept, in books provided for the purpose, the minutes of the meetings of the stockholders, the Board of Directors and any committee when so required, shall see that all notices are duly given in accordance with the provisions of these By-Laws and as required by law, shall be custodian of the records and the seal of the Corporation and see that the seal is affixed to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized in accordance with the provisions of these By-Laws, shall keep or cause to be kept a register of the post office address of each stockholder, may sign with the Chairman of the Board, the Chief Executive Officer or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the Chief Executive Officer or prescribed by these By-Laws. SECTION 13. ASSISTANT SECRETARY. Any Assistant Secretary shall, at the request of the Secretary or in his absence or disability, perform the duties of the Secretary and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Secretary and shall perform such other duties and have such other powers as from time to time may be assigned to him by the Chief Executive Officer, the Secretary or the Board of Directors or prescribed by these By-Laws. SECTION 14. TREASURER. The Treasurer, if any, shall have charge and custody of, and be responsible for, all funds and securities of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these By-Laws, shall at all reasonable times exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation controlled by the Corporation to any of the directors of the Corporation upon application during business hours at the office of the Corporation, or such other corporation, where such books and records are kept, shall, if called upon to do so, receive and give receipts for monies due and payable to the Corporation from any source whatsoever, may sign with the Chairman of the Board, the Chief Executive Officer or any Vice President certificates of stock of the Corporation, and in general shall perform such duties and have such powers incident to the office of Treasurer and such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the Chief Executive Officer or prescribed by these By-Laws. 12 SECTION 15. ASSISTANT TREASURER. Any Assistant Treasurer shall, at the request of the Treasurer or in his absence or disability, perform the duties of the Treasurer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the Treasurer and shall perform such duties and have such other powers as from time to time may be assigned to him by the Chief Executive Officer, the Treasurer or the Board of Directors or prescribed by these By-Laws. SECTION 16. OTHER OFFICERS. Such officers as the Board of Directors may choose shall perform such duties and have such powers as may be appropriate to such officer or as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers. SECTION 17. COMPENSATION. The compensation of the officers shall be fixed from time to time by the Board of Directors, or by any committee upon whom power in that regard may be conferred by the Board of Directors. No officer shall be prevented from receiving such compensation by reason of the fact that he is also a director of the Corporation. SECTION 18. AUTHORITY OF OFFICERS. The officers of the Corporation shall have such duties and authority as set forth in these By-Laws and as shall be determined from time to time by the Board of Directors. ARTICLE VI. CAPITAL STOCK SECTION 1. ISSUE OF CERTIFICATES OF STOCK. Certificates for shares of the capital stock of the Corporation shall be in such form not inconsistent with law as shall be approved by the Board of Directors. They shall be numbered in order of their issue and shall be signed by the Chairman of the Board or the Chief Executive Officer or any Vice President and the Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Corporation, and the seal of the Corporation or a facsimile thereof shall be impressed or affixed or reproduced thereon, provided, however, that where such certificates are signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of any such Chairman of the Board, Chief Executive Officer, Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be facsimile. In case any officer, transfer agent or registrar who shall have signed or whose facsimile signature shall have been placed upon any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the 13 Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature shall have been used thereon had not ceased to be such officer or officers of the Corporation. SECTION 2. UNCERTIFIED SHARES. Subject to any conditions imposed by the Delaware General Corporation Law, the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the Corporation shall be uncertified shares. Within a reasonable time after the issuance or transfer of any uncertified shares, the Corporation shall send to the registered owner thereof any written notice prescribed by the General Corporation Law. SECTION 3. FRACTIONAL SHARE INTERESTS. The Corporation may, but shall not be required to, issue fractions of a share. If the Corporation does not issue fractions of a share, it shall (i) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the corporation in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not exchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the Corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the Board of Directors may impose. SECTION 4. REGISTRATION AND TRANSFER OF STOCK. The shares of capital stock of the Corporation shall be issued in registered form. The name of each person owning a share of the capital stock of the Corporation shall be entered on the books of the Corporation together with the number of shares held by him, the numbers of the certificates covering such shares and the dates of issue of such certificates. The shares of stock of the Corporation shall be transferable on the books of the Corporation by the holders thereof in person, or by their duly authorized attorneys or legal representatives, on surrender and cancellation of certificates for a like number of shares, accompanied by an assignment or power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity 14 of the signature as the Corporation or its agents may reasonably require. A record shall be made of each transfer. A person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof as regards the Corporation, and the Corporation shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. SECTION 5. LOST, STOLEN AND DESTROYED CERTIFICATES. The holder of any stock issued by the Corporation shall immediately notify the Corporation of any loss, theft, or destruction of the certificate therefor or the failure to receive a certificate of stock issued by the Corporation, and the Board of Directors or the Secretary of the Corporation may, in its or his discretion, cause to be issued to such holder a new certificate or certificates of stock, upon compliance with such rules, regulations and/or procedures as may be prescribed or have been prescribed by the Board of Directors with respect to the issuance of new certificates in lieu of such lost, stolen or destroyed certificate or certificates of stock issued by the Corporation which are not received. The Board of Directors or the Secretary of the Corporation may, in its or his discretion, require the owner of the lost, stolen or destroyed certificate, or his legal representatives, to give the Corporation a bond, in such sum not exceeding double the value of the stock and with such surety or sureties as they may require, to indemnify it against any claim that may be made against it by reason of the issue of such new certificate and against all other liability in the premises, or may remit such owner to such remedy or remedies as he may have under the laws of the State of Delaware. SECTION 6. TRANSFER AGENT AND REGISTRAR; REGULATIONS. The Corporation shall, if and whenever the Board of Directors shall so determine, maintain one or more transfer offices or agencies, each in the charge of a transfer agent designated by the Board of Directors, where the shares of the capital stock of the Corporation shall be directly transferable, and also one or more registry offices, each in the charge of a registrar designated by the Board of Directors, where such shares of stock shall be registered, and no certificate for shares of the capital stock of the Corporation, in respect of which a Registrar and/or Transfer Agent shall have been designated, shall be valid unless countersigned by such Transfer Agent and registered by such Registrar, if any. The Board of Directors shall also make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates for shares of the capital stock of the Corporation. SECTION 7. BENEFICIAL OWNERS. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for 15 calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or whether or not it shall have express or other notice thereof, except as otherwise provided by law. SECTION 8. STOCKHOLDER APPROVALS. Except as otherwise expressly required by law, any stock option or purchase plan pursuant to which stock may be acquired by officers or directors of the Company must be approved by the affirmative vote of a majority of the outstanding shares entitled to vote thereon, provided that, where such option or purchase plan applies generally to security holders of the Company or broadly to other employees of the Company, stockholder approval shall not be required. ARTICLE VII DIVIDENDS, SURPLUS, ETC. SECTION 1. GENERAL DISCRETION TO DIRECTORS. The Board of Directors shall have power to fix and vary the amount to be set aside or reserved as working capital of the Corporation, or as reserves, or for other proper purposes of the Corporation, and, subject to the requirements of the Certificate of Incorporation, to determine whether any, if any, part of the surplus or net profits of the Corporation shall be declared as dividends and paid to the stockholders, and to fix the date or dates for the payment of dividends. ARTICLE VIII GENERAL PROVISIONS SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall commence on the first day of January and end on the last day of December. SECTION 2. NOTICE. Except as otherwise expressly provided, any notice required by these By-Laws to be given shall be sufficient if given by depositing the same in a post office or letter box in a sealed postpaid wrapper addressed to the person entitled thereto at his address, as the same appears upon the books of the Corporation, or by telegraphing or cabling the same to such person at such addresses; and such notice shall be deemed to be given at the time it is mailed, telegraphed or cabled. SECTION 3. WAIVERS OF NOTICE. Whenever any notice of any nature is required by law, the provisions of the Certificate of Incorporation or these By-Laws to be given, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. 16 SECTION 4. QUALIFYING IN FOREIGN JURISDICTION. The Board of Directors shall have the power at any time and from time to time to take or cause to be taken any and all measures which they may deem necessary for qualification to do business as a foreign corporation in any one or more foreign jurisdictions and for withdrawal therefrom. SECTION 5. PROXIES. Except as otherwise provided in these By-Laws or in the Certificate of Incorporation of the Corporation, and unless otherwise provided by resolution of the Board of Directors, the Chairman of the Board may appoint from time to time an attorney or attorneys, or agent or agents, of the Corporation, on behalf and in the name of the Corporation, to cast the votes which the Corporation may be entitled to cast as a stockholder or otherwise in any other corporation any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing to any action by such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed on behalf and in the name of the Corporation and under its corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. SECTION 6. CORPORATE SEAL. The Board of Directors shall provide a suitable seal containing the name of the Corporation, which seal shall be in the charge of the Secretary and which may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. If and when so directed by the Board of Directors, a duplicate of the seal may be kept and be used by an officer of the Corporation designated by the Board. SECTION 7. DISBURSEMENTS. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner, as shall from time to time be designated by resolution of the Board of Directors. SECTION 8. DEPOSITS. All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such bank or banks, trust companies or other depositories as the Board of Directors may select, and, for the purpose of such deposit, checks, drafts, warrants and other orders for the payment of money which are payable to the order of the Corporation, may be endorsed for deposit, assigned and delivered by any officer of the Corporation, or by such agents of the Corporation as the Board of Directors or the Chairman of the Board may authorize for that purpose. 17 ARTICLE IX INDEMNIFICATION SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article IX, the Corporation shall indemnify any person (to the full extent permitted by the laws of the State of Delaware, as amended from time to time) who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article IX, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit, proceeding or claim by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprises against expenses (including attorney's fees and expenses) actually and reasonably incurred by him and to the extent permitted by applicable law in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the 18 adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses and amounts which the Court of Chancery or such other court shall deem proper. SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under this Article IX (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article IX, as the case may be. Such determination and determinations under Section 5 or 6 of this Article IX shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees and expenses) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case. SECTION 4. GOOD FAITH DEFINED. (a) For purposes of any determination under Section 3 of this Article IX, a person shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him by the officers of the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public account or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, agent or employee. (b) References in this Article IX to "penalties" include any excise taxes assessed on a person with respect to an employee benefit plan; references in this Article IX to "serving at the request of the Corporation" include any service as a director or officer (or if appropriate an employee or agent) or former director or officer (or if appropriate a former employee 19 or agent) of the Corporation which imposes duties on, or involves services by, such person with respect to an employee benefit plan or its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the participants or beneficiaries of such an employee benefit plan shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation. (c) The provisions of this Section 4 shall not be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Sections 1 or 2 of this Article IX, as the case may be. SECTION 5. Indemnification upon Application; Procedure Upon Application; Etc. Except as otherwise provided in the proviso to Section 2 of this Article IX: (d) Any indemnification under Section 1 or 2 of this Article IX shall be made no later than 45 days after receipt by the Corporation of the written request by the director, officer, employee or agent or the former director, officer, employee or agent, unless a determination is made within said 45-day period in accordance with Section 3 of this Article IX that such person has not met the applicable standard of conduct set forth in Section 1 or 2 of this Article IX. (e) The right to indemnification under Section 1 or 2 of this Article IX or advances under Section 6 of this Article IX shall be enforceable by the director, officer, employee or agent or former director, officer, employee or agent in any court of competent jurisdiction. The burden of proving that indemnification is not appropriate shall be on the Corporation. Neither the absence of any prior determination that indemnification is proper in the circumstances, nor a prior determination that indemnification is not proper in the circumstance, shall be a defense to the action or create a presumption that the director or officer, or former director or officer, has not met the applicable standard of conduct. The expenses (including attorneys' fees and expenses) incurred by the director, officer, employee or agent in connection with successfully establishing his right to indemnification, in whole or in part, in any such action (or in any action or claim brought by him to recover under any insurance policy or policies referred to in Section 9 of this Article IX) shall also be indemnified by the Corporation. (f) If any person is entitled under any provision of this Article IX to indemnification by the Corporation for some or a portion of expenses, judgments, fines, penalties or amounts paid in settlement incurred by him, but not, however, for the total amount thereof, the corporation shall nevertheless 20 indemnify such person for the portion of such expense, judgments, fines, penalties and amounts to which he is entitled. SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses (including attorneys' fees and expenses) incurred by an officer, director, employee or agent or a former officer, director, employee or agent in defending a civil or criminal action or investigating a threatened or pending action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article IX; provided, however, that if he seeks to enforce his rights in a court of competent jurisdiction pursuant to Section 5(b) of this Article IX, said understanding to repay shall not be applicable or enforceable unless and until there is a final court determination that he is not entitled to indemnification as to which all rights of approval have been exhausted or have expired. SECTION 7. CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION. Notwithstanding any other provision of this Article IX, no person shall be entitled to indemnification under this Article IX or to advances under Section 6 of this Article IX with respect to any action, suit, proceeding or claim brought or made by him against the Corporation, other than an action, suit, proceeding or claim seeking, or defending such person's right to, indemnification and/or expense advances pursuant to this Article IX or otherwise. SECTION 8. NON-EXCLUSIVITY AND SURVIVAL OF INDEMNIFICATION. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article IX shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any By-law, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as to action in another capacity while holding office, it being the policy of the Corporation that indemnification and expense advances to the persons specified in Section 1 and 2 of this Article IX shall be made to the fullest extent permitted by law and, accordingly, in the event of any change in law, by legislation or otherwise, permitting greater indemnification and/or expense advances to any such person, the provisions of this Article IX shall be construed so as to require such greater indemnification and/or expense advances. The provisions of this Article IX shall not be deemed to preclude the indemnification of any person who is not specified in Sections 1 or 2 of this Article IX but whom the Corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of 21 Delaware, or otherwise. The indemnification and advancement of expenses provided by or granted pursuant to this Article IX shall continue as to a person who has ceased to be a director or officer (or if appropriate an employee or agent) and shall inure to the benefit of the heirs, executors and administrators of such person. SECTION 9. INSURANCE. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power or the obligation to indemnify him against such liability under the provisions of this Article IX or the provisions of Section 145 of the General Corporation Law of the State of Delaware. The Corporation shall not be obligated under this Article IX to make any payment in connection with any claim made against any person if and to the extent that such person has actually received payment therefore under any insurance policy or policies. SECTION 10. MEANING OF "CORPORATION" FOR PURPOSES OF ARTICLE IX. For purposes of this Article IX, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article IX with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. SECTION 11. LIMITATION ON ACTIONS. No legal action shall be brought and no cause of action shall be asserted by or on behalf of the Corporation or any affiliate of the Corporation against any person who is or was a director or officer of the Corporation after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Corporation or its affiliates shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such shorter period shall govern. SECTION 12. SEVERABILITY. The provisions of this Article IX shall be severable in the event that any provision hereof (including any provision within a single section, 22 subsection, clause, paragraph or sentence) is held invalid, void or otherwise unenforceable on any ground by any court of competent jurisdiction. In the event of any such holding, the remaining provisions of this Article IX shall continue in effect and be enforceable to the fullest extent permitted by law. ARTICLE X. AMENDMENTS These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by either the stockholders or by the Board of Directors, provided, however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. EX-4 5 SPECIMEN OF STOCK CERTIFICATE EXHIBIT 4 [SPECIMEN COMMON STOCK CERTIFICATE] [FACE OF CERTIFICATE] COMMON STOCK COMMON STOCK NUMBER SHARES [BOLLE LOGO] INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR THE STATE OF DELAWARE CERTAIN DEFINITIONS CUSIP 097937 10 6 This Certifies that is the owner of FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.01 PER SHARE OF Bolle Inc. transferable only on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed This certificate is not valid unless countersigned by the Transfer Agent and Registrar. Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers. Dated: [SEAL OF BOLLE INC.] /s/ Peter H. Trembath Secretary Countersigned and Registered: National City Bank /s/ Martin E. Franklin (CLEVELAND, OHIO) TRANSFER AGENT Chairman of the Board AND REGISTRAR BY AUTHORIZED SIGNATURE [BACK OF CERTIFICATE] The Corporation is authorized to issue more than one class of stock or more than one series of any class. The Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT -______Custodian ______ (Cust) (Minor) TEN ENT - as tenants by the entireties under Uniform Gifts to Minors JT TEN - as joint tenants with Act_________________________ right of survivorship and (State) not as tenants in common Additional abbreviations may also be used though not in the above list. For Value received, _______________hereby sell, assign and transfer unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE [ ] - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE) - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------- Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint - ---------------------------------------------------------------------- Attorney to transfer the said stock on the books of the within-named Corporation with full power of substitution in the premises. Dated, ---------------- -------------------------------------------- NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER. SIGNATURE(S) GUARANTEED: - ------------------------------ THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION, (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15. EX-6 6 LETTER AGREEMENT EXHIBIT 6 December 15, 1997 Mr. Robert Bolle Mr. Maurice Bolle Mr. Franck Bolle Mr. Patricia Bolle Passaquay Ms. Brigitte Bolle Mrs. Christelle Roche Re: Dear Sirs/Madame: With regard to my letter, dated July 9, 1997, a copy of which is attached hereto as Exhibit I, please be advised that all representations and agreements set forth in said letter shall apply both to those shares I own of BEC Group, Inc. (to be named "Lumen Technologies, Inc." in the future) common stock referenced therein and shares of common stock of Bolle Inc. I may own hereafter as a result of the proposed spinoff of Bolle Inc. Very truly yours, /s/ Martin E. Franklin Martin E. Franklin EXHIBIT I [TO BE EXECUTED AT CLOSING] July 9th, 1997 To the Series A Preferred Stockholders listed on the signature pages hereof: Re: BEC Group, Inc./Acquisition of Bolle Etablissements S.N.C. ("Bolle France") -------------------------------------- Gentlemen: The undersigned is the owner of 1,295,564 shares (the "Shares") of Common Stock, $.01 par value per share ("Common Stock") of BEC Group, Inc. (the "Company"). The undersigned understands that the Company intends to acquire all of the issued and outstanding shares of Bolle France (the "Transactions") pursuant to the terms of the Share Purchase Agreement (the "Agreement"), dated June 4, 1997, as amended, among BEC Group, Inc., Bolle Inc. and the Sellers therein named. In order to induce you to close the Transactions contemplated in the Agreement, the undersigned agrees, for the benefit of the Company and you, that immediately following the closing of the Transactions, the undersigned will not, without the prior written consent of the holders of at least 90% of the then outstanding shares of Series A Preferred Stock (the "90% Holders"), sell any of the Shares owned by the undersigned on the date hereof until the date that all of the shares of Series A Preferred Stock or the Subordinated Debt (as defined in the Certificate of Designation of the Series A Preferred Stock as filed with the Secretary of State of Delaware as of the date hereof (the "Certificate")) including all accrued but unpaid dividends and/or interest, if any, are redeemed in full (whether in cash or other cash equivalent accepted by all of the Holders) by the Company. Notwithstanding the foregoing, the undersigned may transfer any shares either (i) to his immediate family members, or (ii) to trusts for his sole benefit or the sole benefit of such immediate family members and to partnerships in which such immediate family members and/or trusts are sole partners; provided, however, that prior to any such transfer, each transferee shall execute an agreement, whereby each transferee shall agree to receive and hold such Shares subject to the restrictions set forth herein. In addition, the undersigned may transfer any Shares (i) on death by Will or intestacy; (ii) to charitable foundations up to a value of $50,000 per annum; or (iii) in transactions involving all the stockholders of the Company on a pro rata basis, provided, however, that in the event of any such transaction which results in the undersigned receiving any stock consideration in exchange for the Shares, in part or in whole, such stock consideration received shall be subject to the restrictive provisions set forth herein. For the purposes of this paragraph, "immediate family" shall mean the spouse, lineal descendant, father, mother, brother or sister of the undersigned. Notwithstanding anything to the contrary contained herein, in the event of a partial redemption of the Series A Preferred Stock or Subordinated Debt, as the case may be, (whether in cash or other cash equivalent accepted by all of the Holders) the undersigned shall be permitted to sell his Shares on a pro rata basis in proportion to the aggregate Liquidation Preference (as defined in the Certificate) of such number of shares of Series A Preferred Stock redeemed and/or the principal amount of the Subordinated Debt that is repaid (whether in cash or other cash equivalent accepted by all of the Holders) compared to the aggregate Liquidation Prefernce of the total number of shares of such Series A Preferred Stock originally issued. The undersigned confirms that he understands that the holders of the Series A Preferred Stock of the Company will rely upon the representations set forth in this agreement in proceeding with the Transaction. This letter agreement shall be binding on the undersigned. Very truly yours, [by] /s/ Ian G.H. Ashken Martin E. Franklin -2- The foregoing is accepted and agreed to as of the date first above written: By: /s/ Robert Bolle ------------------------------------ Robert Bolle 58 Route de Marchon 01100 Oyonnax By: /s/ Maurice Bolle ------------------------------------ Maurice Bolle 13 Rue Balland 01100 Oyonnax By: /s/ Franck Bolle ------------------------------------ Franck Bolle 4 Boulevard Dupuy 01100 Oyonnax By: /s/ Patricia Bolle ------------------------------------ Patricia Bolle 6 Rue du General de Gaulle 01100 Oyonnax By: /s/ Brigitte Bolle ------------------------------------ Brigitte Bolle 25 Bis, Boulevard de la Saussaye 92200 Neuilly-sur Scinc By: /s/ Christelle Roche ------------------------------------ Christelle Roche 2 Rue Macretet 01100 Arbent -3- -----END PRIVACY-ENHANCED MESSAGE-----