Attached files
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| 8-K - BLYTH INC | annualmeeting8k061010.htm |
| EX-3.2 - BLYTH INC | exhibit32.htm |
EXHIBIT
3.1
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
of
BLYTH,
INC.
Pursuant
to the provisions of Sections 242 and 245 of the General Corporation Law of the
State of Delaware (the “G.C.L.”) the undersigned, Robert B. Goergen, the
Chairman and Chief Executive Officer of Blyth, Inc., a corporation organized and
existing in the State of Delaware (the “Corporation”), does hereby certify as
follows:
FIRST: The
name of the Corporation is Blyth, Inc. The Corporation was originally
incorporated under the name “Candle Corporation of America.” The
original Certificate of Incorporation of the Corporation was filed with the
Secretary of State of Delaware on September 9, 1977. A Restated Certificate of
Incorporation was filed with the Secretary of State of Delaware on May 13, 1994
(the “Restated Certificate”). A Certificate of Amendment of the
Restated Certificate of Incorporation was filed with the Secretary of State of
Delaware on June 14, 2000. A Certificate of Amendment of the Restated
Certificate of Incorporation was filed with the Secretary of State of Delaware
on January 30, 2009.
SECOND: This
Amended and Restated Certificate of Incorporation restates, integrates and
amends the Restated Certificate, as heretofore amended and supplemented, and has
been duly adopted by the Board of Directors and the stockholders of the
Corporation in accordance with the provisions of Sections 242 and 245 of the
G.C.L.
THIRD: The
capital of the Corporation will not be reduced under or by reason of the
amendments to the Certificate of Incorporation effected hereby.
FOURTH: The
text of the Certificate of Incorporation, as heretofore amended and
supplemented, is hereby further amended and restated to read as herein set forth
in full:
ARTICLE
I
Name
The name
of the Corporation is Blyth, Inc. (hereinafter referred to as the
“Corporation”).
ARTICLE
II
Address; Registered
Agent
The
address of the Corporation’s registered office in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at that
address is The Corporation Trust Company.
ARTICLE
III
Purpose
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the G.C.L.
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ARTICLE
IV
Capitalization
Section
1. The
aggregate number of shares of all classes of capital stock which the Corporation
is authorized to issue (sometimes hereinafter collectively referred to as the
“Capital Stock”) is 60,000,000 shares, of which: (i) 10,000,000 shares shall be
preferred stock, $0.01 par value per share (hereinafter referred to as the
“Preferred Stock”); and (ii) 50,000,000 shares shall be common stock, $0.02 par
value per share (hereinafter referred to as the “Common Stock”).
Section
2. Pursuant
to Section 151 of the G.C.L., a statement of the designations, powers,
preferences and rights, and the qualifications and restrictions thereof, in
respect of each class of Capital Stock is as follows:
A PREFERRED
STOCK
The Board
of Directors is hereby expressly authorized at any time, and from time to time,
to provide for the issuance of shares of Preferred Stock in one or more series,
with such voting powers, full or limited, or no voting powers, and with such
designations, preferences and relative, participating, optional or other rights,
and qualifications or restrictions thereof, as shall be stated and expressed in
the resolution or resolutions providing for the issue thereof adopted by a
majority of the Board of Directors then in office and the certificate of
designations filed under the G.C.L. setting forth such resolution or
resolutions, including (without limiting the generality thereof) the following
as to each such series:
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(i)
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the
designation of such series;
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(ii)
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the
dividends, if any, payable with respect to such series, the rates or basis
for determining such dividends, any conditions and dates upon which such
dividends shall be payable, the preferences, if any, of such dividends
over, or the relation of such dividends to, the dividends payable on the
Common Stock or any other series of Preferred Stock, whether such
dividends shall be noncumulative or cumulative, and, if cumulative, the
date or dates from which such dividends shall be
cumulative;
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(iii)
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whether
shares of such series shall be redeemable at the option of the Board of
Directors or the holder, or both, upon the happening of a specified event
and, if redeemable, whether for cash, property or rights, including
securities of the Corporation, the time, prices or rates and any
adjustment and other terms and conditions of such
redemption;
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(iv)
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the
terms and amount of any sinking, retirement or purchase fund provided for
the purchase or redemption of shares of such
series;
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(v)
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whether
or not shares of such series shall be convertible into or exchangeable for
shares of Common Stock or any other series of Preferred Stock, at the
option of the Corporation or of the holder, or both, or upon the happening
of a specified event and, if provision be made for such conversion or
exchange, the terms, prices, rates, adjustments and any other terms and
conditions thereof;
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(vi)
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the
extent, if any, to which the holders of shares of such series shall be
entitled to vote with respect to the election of Directors or otherwise,
including, without limitation, the extent, if any, to which such holders
shall be entitled, voting as a series or as a part of a class, to elect
one or more Directors upon the happening of a specified event or
otherwise;
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(vii)
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the
restrictions, if any, on the issue or reissue of shares of such series or
any other series;
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(viii)
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the
extent, if any, to which the holders of shares of such series shall be
entitled to preemptive rights; and
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(ix)
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the
rights of the holders of shares of such series upon the liquidation of the
Corporation or any distribution of its
assets.
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B COMMON
STOCK
1. Designation and
Amount. The authorized number of shares of Common Stock shall
be 50,000,000.
2. Dividends and
Distributions. No payment of dividends or distributions shall
be made to the holders of shares of Common Stock unless and until the holders of
shares of Preferred Stock receive any preferential amounts to which they are
entitled under this ARTICLE IV or in the resolution or resolutions providing for
the issue of shares of Preferred Stock. Subject to the limitation set
forth in the preceding sentence of this Paragraph 2 and except as otherwise
provided by this Amended and Restated Certificate of Incorporation or in the
resolution or resolutions providing for the issue of shares of Preferred Stock,
the holders of shares of Common Stock shall be entitled to receive such
dividends and distributions as may be declared upon such shares of Common Stock
from time to time by a resolution or resolutions adopted by the Board of
Directors.
3. Voting
Rights. All holders of Common Stock shall be entitled to
notice of any stockholders’ meeting. Subject to the provisions of any
applicable law and except as otherwise provided in this Amended and Restated
Certificate of Incorporation or by the resolution or resolutions providing for
the issue of shares of Preferred Stock, all voting rights shall be vested solely
in the Common Stock. The holders of shares of Common Stock shall be
entitled to vote upon the election of Directors and upon any other matter
submitted to the stockholders for a vote. Each share of Common Stock
issued and outstanding shall be entitled to one noncumulative vote. A
fraction of a share of Common Stock shall not be entitled to any voting rights
whatsoever.
4. Liquidation, Dissolution or
Winding Up. Except as otherwise provided in this Amended and
Restated Certificate of Incorporation and subject to the rights of holders, if
any, of Preferred Stock to receive preferential liquidation distributions to
which they are entitled under this ARTICLE IV or under the resolution or
resolutions providing for the issue of shares of Preferred Stock, in the event
of any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment or provision for payment of the debts
and liabilities of the Corporation, all assets of the Corporation shall be
shared pro rata among the holders of the Common Stock.
5. No Preemptive
Rights. No holder of shares of Common Stock shall as such
holder have any preemptive right to purchase or subscribe to shares of Common
Stock or shares or other securities convertible into or exchangeable for or
carrying rights or options to purchase or subscribe to shares of Common
Stock.
Section
3. Except as
otherwise provided in this Amended and Restated Certificate of Incorporation or
by applicable law, the Capital Stock, regardless of class, may be issued for
such consideration and for such corporate purposes as the Board of Directors may
from time to time determine by a resolution or resolutions adopted by a majority
of the Board of Directors then in office.
ARTICLE
V
Board of Directors;
Stockholders’ Meetings
Section
1. The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
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Section
2. The Board
of Directors shall consist of not less than three persons, the exact number to
be fixed from time to time by the Board of Directors pursuant to a resolution
adopted by a majority of Directors then in office.
Section
3. Notwithstanding
anything to the contrary contained in this Amended and Restated Certificate of
Incorporation, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting if all of the members of the Board of Directors or such committee, as
the case may be, then in office consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee. Members of the Board of Directors or any committee
thereof designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other, and participation in a meeting
by such means shall constitute presence in person at such meeting.
Section
4. The
directors, other than those who may be elected by the holders of any Preferred
Stock, shall, commencing with the annual meeting of stockholders scheduled to be
held in calendar year 2011 (the “2011 Annual Meeting”), be elected at each
annual meeting of stockholders for a term expiring at the next annual meeting of
stockholders following their election and shall remain in office until their
successors shall have been elected and qualified or until their earlier death,
resignation, retirement, disqualification or removal. The term of office of each
director serving on the Board of Directors immediately prior to the election of
directors at the 2011 Annual Meeting (other than any directors elected by
holders of Preferred Stock) shall expire at the 2011 Annual Meeting,
notwithstanding that any such director may have been elected for a term that
extended beyond the date of the 2011 Annual Meeting, but such director may
remain in office beyond the expiration of such term expiring at the 2011 Annual
Meeting until a successor is elected and qualified or until such director’s
earlier death, resignation, retirement, disqualification or
removal. Any Director elected to fill a vacancy resulting from an
increase in the number of directors or from the death, resignation, retirement,
disqualification or removal of a Director or other cause shall hold office for a
term expiring at the next annual meeting of stockholders following his or her
appointment to the Board of Directors or until such director’s earlier death,
resignation, retirement, disqualification or removal.
Section
5. Subject
to the rights of the holders of Preferred Stock, any vacancy in the Board of
Directors caused by death, resignation, removal, retirement, disqualification or
any other cause (including an increase in the number of Directors) may be filled
solely by resolution adopted by a majority of the Board of Directors then in
office, whether or not such majority constitutes less than a quorum, or by a
sole remaining Director; provided however, that any
vacancy created by a removal of a Director pursuant to Section 6 of this ARTICLE
V may be filled by action of the stockholders taken at the same meeting at which
the vacancy was created; such action to be upon the affirmative vote of the
holders of not less than a majority of the voting power of the outstanding
Capital Stock entitled to vote in the election of Directors, voting as a single
class.
Section
6. Subject
to the rights of holders of Preferred Stock to elect Directors or to remove
Directors so elected, a duly elected Director of the Corporation may be removed
from such position with or without cause; any such removal may be effected only
by the affirmative vote of the holders of at least a majority of the voting
power of the outstanding Capital Stock entitled to vote in the election of
Directors, voting as a single class.
Section
7. Except as
otherwise provided by applicable law or by this Amended and Restated Certificate
of Incorporation, a majority of the Board of Directors then in office at the
time of a duly assembled meeting shall be necessary to constitute a quorum and
be sufficient for the transaction of business, and the act of a majority of the
Directors present at such meeting shall be the act of the Board of
Directors.
Section
8. Except as
otherwise provided by law, at any annual or special meeting of stockholders only
such business shall be conducted as shall have been properly brought before the
meeting. Except as otherwise provided in this ARTICLE V, in order to
be properly brought before the meeting, such business must have either
been: (A) specified in the written notice of the meeting (or any
supplement thereto) given to the stockholders of record on the record date for
such meeting by or at the direction of the Board of Directors; (B) brought
before the meeting at the direction of the Chairman, the Chief Executive
Officer, the President or the Board of Directors; or (C) specified in a written
notice given by or on behalf of a stockholder of record on the record date
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Section
9. The
annual meeting of stockholders of the Corporation for the election of Directors
and the transaction of such other business as may be brought before the meeting
in accordance with this Amended and Restated Certificate of Incorporation shall
be held on the date and the time fixed from time to time by the Board of
Directors by a resolution adopted by the Board of Directors. Except
as provided below in this ARTICLE V, special meetings of stockholders may be
called only at the direction of the Chairman, the Chief Executive Officer, the
President or the record holders of at least 35% of the voting power of the
outstanding Capital Stock of the Corporation. Annual and special
meetings of stockholders shall not be called or held otherwise than as herein
provided.
Section
10. Except as
otherwise provided by law or by ARTICLE VII of this Amended and Restated
Certificate of Incorporation, at any meeting of stockholders of the Corporation
the presence in person or by proxy of the holders of a majority in voting power
of the outstanding Capital Stock of the Corporation entitled to vote shall
constitute a quorum for the transaction of business brought before the meeting
in accordance with this Amended and Restated Certificate of Incorporation and, a
quorum being present, the affirmative vote of the holders of a majority in
voting power present in person or represented by proxy and entitled to vote
shall be required to effect action by stockholders, provided, however, except as
otherwise provided in Section 5 of ARTICLE V (relating to vacancies), each
director shall be elected by the vote of the majority of the votes cast with
respect to that director’s election at any meeting for the election of directors
at which a quorum is present, provided that if the number of nominees exceeds
the number of directors to be elected at such meeting (a “Contested Election”),
the directors shall be elected by the vote of a plurality of the votes
cast. For purposes of this Section 10, a majority of votes cast shall
mean that the number of votes cast “for” a director’s election exceeds the
number of votes cast “against” that director’s election (with “abstentions” not
counted as a vote cast either “for” or “against” that director’s
election).
Section
11. At each
meeting of the stockholders, one of the following shall act as chairman of the
meeting and preside thereat, in the following order of precedence:
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(a) the
Chairman;
(b) the Chief
Executive Officer;
(c) the
President; or
(d) any
director, officer or stockholder of the Corporation designated-by the Chairman,
or if such officer has not done so, then by the Chief Executive Officer, or if
such officer has not done so, then by the President, or if such officer has not
done so, by a resolution adopted by the Board of Directors.
Section
12. Any
holder of shares of Preferred Stock may exercise the special voting rights, if
any, of such shares to elect Directors upon the occurrence of certain events
specified in this Amended and Restated Certificate of Incorporation or in the
resolution or resolutions adopted by a majority of the Board of Directors then
in office providing for the issue of such shares of Preferred Stock, in any
manner now or hereafter permitted by this Amended and Restated Certificate of
Incorporation, such resolution or resolutions or applicable law.
Section
13. The
exercise by the Board of Directors of the powers conferred in this ARTICLE V
shall at all times be subject to any statutory or other limitations upon such
powers provided by the laws of the State of Delaware.
Section
14. The
Corporation may in its By-Laws confer powers upon its Board of Directors in
addition to the foregoing, and in addition to the powers and authorities
expressly conferred upon it by statute.
ARTICLE
VI
Director
Liability
A
Director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability: (i) for any breach of the Director’s
duty of loyalty to the Corporation or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 174 of the G.C.L.; or (iv) for any
transaction from which the Director derived an improper personal
benefit. If the G.C.L. is amended to authorize corporate action
further eliminating or limiting the personal liability of Directors, then the
liability of a Director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the G.C.L., as so amended. The provisions
of this ARTICLE VI are not intended to, and shall not, limit, supersede or
modify any other defense available to a Director under applicable
law. Any repeal or modification of this ARTICLE VI by the
stockholders of the Corporation shall not adversely affect any right or
protection of a Director of the Corporation existing immediately prior to the
time of such repeal or modification.
ARTICLE
VII
Amendments to the Amended
and Restated Certificate of Incorporation
and the Amended and Restated
By-Laws
Section
1. The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this
reservation. Notwithstanding the preceding sentence, the affirmative
vote of stockholders holding 66-2/3% of the outstanding shares of Capital Stock
then entitled to vote on such issue shall be required in order to amend any
provision of, or to adopt any provision which is inconsistent with, Sections 2,
4, 5, 6, 7, 8 or 9 of Article V, Article VI or this Article VII.
Section
2. Any
provision of the Amended and Restated By-Laws of the Corporation may be amended
in a manner which is not inconsistent with the G.C.L. or any provision of this
Amended and Restated
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FIFTH: In
accordance with the provisions of Section 103(d) of the G.C.L., the Amended and
Restated Certificate of Incorporation set forth above shall become effective
upon its filing date.
IN
WITNESS WHEREOF, the Chairman of the Corporation has executed this Amended and
Restated Certificate of Incorporation, under its seal, this 10th day
of June, 2010.
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BLYTH,
INC.
By:
Name:
Robert B. Goergen
Title:
Chairman and Chief Executive
Officer
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