EXHIBIT (3)(ii)
UNOFFICIAL AMENDED AND RESTATED
BY-LAWS
OF
THE MIDDLEBY CORPORATION
a Delaware Corporation
(AS AMENDED TO AUGUST 23, 1996)
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ARTICLE I
STOCKHOLDERS
Section 1.1. ANNUAL MEETING.
An annual meeting of stockholders for the purpose of electing directors and
of transacting such other business as may come before it shall be held each year
at such date, time and place, either within or without the State of Delaware, as
may be specified by the Board of Directors.
Section 1.2. SPECIAL MEETINGS.
Special meetings of stockholders for any purpose or purposes may be held at
any time upon call of the Chairman of the Board, the President, or a majority of
the Board of Directors, at such time and place either within or without the
State of Delaware as may be stated in the call and notice. A special meeting of
stockholders shall be called by the Chairman of the Board or the President upon
the written request, stating time, place and the purpose or purposes of the
meeting, of stockholders who together own of record at least ten percent (10%)
of the outstanding stock of any class entitled to vote at such meeting.
Section 1.3. NOTICE OF MEETINGS.
Notice of stockholders' meetings, stating the place, date and hour thereof,
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called, shall be given by the Chairman of the Board, the President or
the Secretary to each stockholder of record entitled to vote thereat at least
ten days but not more than sixty days before the date of the meeting, unless a
different period is prescribed by law.
Section 1.4. QUORUM.
Except as otherwise provided by law or the certificate of incorporation or
these By-Laws, at any meeting of stockholders, the holders of a majority of the
outstanding shares of each class of stock entitled to vote at the meeting shall
be present or represented by proxy in order to constitute a quorum for
transaction of any business. In the absence of a quorum, a majority in interest
of the stockholders present or the chairman of the meeting may adjourn the
meeting from time to time in the manner provided in Section 1.5 of these By-Laws
until a quorum shall attend.
Section 1.5. ADJOURNMENT.
Any meeting of stockholders, annual or special, may adjourn from time to
time to reconvene at the same or some other place, and notice need not be given
of any such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting, the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
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Section 1.6. ORGANIZATION.
The Chairman of the Board, or in his absence the President, or in their
absence the Vice President, shall call to order meetings of stockholders and
shall act as chairman of such meetings. The Board of Directors or, if the Board
fails to act, the stockholders may appoint any stockholder or any director or
officer of the Corporation to act as chairman of any meeting in the absence of
the Chairman of the Board, the President and the Vice President.
The Secretary of the Corporation shall act as secretary of all meetings of
stockholders, but in the absence of the Secretary, the chairman of the meeting
may appoint any other person to act as secretary of the meeting.
Section 1.7. VOTING.
Except as otherwise provided by law, the Certificate of Incorporation or
these By-Laws and except for the election of directors, at any meeting duly
called and held at which a quorum is present, a majority of the votes cast at
such meeting upon a given question by the holders of outstanding shares of stock
of all classes of stock of the Corporation entitled to vote thereon who are
present in person or by proxy shall decide such questions. At any election of
directors at which a quorum is present, the directors shall be elected by a
plurality of the votes cast at such election.
Section 1.8. ACTION WITHOUT MEETING.
Any action required or permitted to be taken at any annual or special
meeting of the stockholders of the Corporation 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 holder of outstanding stock having
not less than the minimum number of votes that would be
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necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. NUMBER AND TERM OF OFFICE.
The property, affairs and business of the Corporation shall be managed by
its Board of Directors consisting of not fewer than three (3) nor more than
eleven (11) persons. The exact number of directors within the maximum and
minimum limitations specified herein shall be fixed from time to time by
resolution adopted by the majority of the Board of Directors.
The directors, except as provided in the next paragraph of this Section
2.1, shall be elected at the annual meeting of stockholders, and each director
shall hold office, subject to the provisions of this Article, until the next
annual meeting of stockholders and until his successor is duly elected and
qualified.
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors may be filled by a majority of the directors
then in office, though less than a quorum, or by a sole remaining director, and
the directors so chosen shall hold office until the next annual election and
until their successors are duly elected and shall qualify, unless sooner
displaced. If there are no directors in office, then an election of directors
may be held in the manner provided by statute.
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Unless otherwise provided in the Certificate of Incorporation, any director
or the entire Board of Directors may be removed, with or without cause, by the
holders of a majority of shares then entitled to vote at an election of
directors.
Section 2.2. CHAIRMAN OF THE BOARD.
The directors may elect one of their members to be Chairman of the Board of
Directors. The Chairman shall be subject to the control of and may be removed
by the Board of Directors. He shall perform such duties as may from time to
time be assigned to him by the Board.
Section 2.3. MEETINGS.
The annual meeting of the Board of Directors, for the election of officers
and the transaction of such other business as may come before the meeting, shall
be held without notice at the same place as, and immediately following, the
annual meeting of the stockholders.
Regular meetings of the Board of Directors may be held without notice at
such time and place as shall from time to time be determined by the Board.
Special meetings of the Board of Directors shall be held at such time and
place as shall be designated in the notice of the meeting whenever called by the
Chairman of the Board, the President or by a majority of the directors then in
office.
Section 2.4. NOTICE OF SPECIAL MEETINGS.
The Secretary, or in his absence any other officer of the Corporation,
shall give each director notice of the time and place of holding of special
meetings of the Board of Directors by mail at least two days before the meeting,
or by telegram, cable or radiogram or personal service at least one day before
the meeting. Unless otherwise stated in the notice thereof, any and all
business may be transacted at any meeting without specification of such business
in the notice.
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Section 2.5. QUORUM AND ORGANIZATION OF MEETINGS.
A majority of the total number of members of the Board of Directors as
constituted from time to time shall constitute a quorum for the transaction of
business, but if at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time, and the meeting may be held as adjourned without further notice or
waiver. Except as otherwise provided by law or by these By-Laws, a majority of
the directors present at any meeting at which a quorum is present may decide any
question brought before such meeting. Meetings shall be presided over by the
Chairman of the Board, or in his absence by the President, or in the absence of
both by such other persons as may be selected by the directors. The Secretary
of the Corporation shall act as secretary of the meeting, but in his absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to consist of one or
more of the directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
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Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have power or authority
in reference to amending the Certificate of Incorporation of the Corporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, or amending these
By-Laws; and, unless the resolution expressly so provided, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. Each committee which may be established by the Board of
Directors or these By-Laws may fix its own rules and procedures. Notice of
meetings of committees, other than of regular meetings provided for by the
rules, shall be given to committee members. All action taken by committees
shall be recorded in minutes of the meetings.
Section 2.7. ACTION WITHOUT MEETING.
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
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
Section 2.8. TELEPHONE MEETINGS.
Members of the Board of Directors, or any committee designated by the
Board, may participate in a meeting of the Board, or committee, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear
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each other, and participation in a meeting pursuant to this Section shall
constitute presence in person at such meetings.
ARTICLE III
OFFICERS
Section 3.1. EXECUTIVE OFFICERS.
The executive officers of the Corporation shall be a Chairman of the Board,
a President, one or more Vice Presidents, a Treasurer and a Secretary, each of
whom shall be elected by the Board of Directors. The Board of Directors may
elect or appoint such other officers (including a Controller and one or more
Assistant Treasurers and Assistant Secretaries) as it may deem necessary or
desirable, each of whom shall hold office for such term as may be prescribed by
the Board of Directors from time to time. Any person may hold at one time two
or more offices.
Section 3.2. POWERS AND DUTIES.
The Chairman of the Board or, in his absence, the President, shall preside
at all meetings of the stockholders and of the Board of Directors. The Chairman
shall be the chief executive officer of the Corporation, reporting only to the
Board of Directors. In the absence of the Chairman, the President shall perform
all the duties of the Chairman. The officers and agents of the Corporation
shall each have such powers and perform such duties in the management of the
business and affairs of the Corporation as generally pertain to their respective
offices, as well as such powers and duties as from time to time may be
prescribed by the Board of Directors.
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ARTICLE IV
RESIGNATIONS, REMOVALS AND VACANCIES
Section 4.1. RESIGNATIONS.
Any director or officer of the Corporation, or any member of any committee,
may resign at any time by giving written notice to the Board of Directors, the
Chairman of the Board of Directors, the President or the Secretary of the
corporation. Any such resignation shall take effect at the time specified
therein or, if the time be not specified therein, upon receipt thereof. The
acceptance of such resignation shall not be necessary to make it effective.
Section 4.2. REMOVALS.
The Board of Directors, at any meeting thereof, or by written consent, may,
to the extent permitted by law, at any time, remove with or without cause from
office or terminate the employment of any officer or member of any committee.
Section 4.3. VACANCIES.
Any vacancy in the office of any officer through death, resignation, removal,
disqualification or other cause, may be filled at any time by a majority of the
directors then in office (even though less than a quorum) and, subject to the
provisions of this Article, the person chosen shall hold office until his
successor shall have been chosen and shall have qualified.
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ARTICLE V
CAPITAL STOCK
Section 5.1. STOCK CERTIFICATES.
The certificates for shares of the capital stock of the Corporation shall
be in such form as shall be prescribed by law and approved, from time to time,
by the Board of Directors.
Section 5.2. TRANSFER OF SHARES.
Shares of the capital stock of the Corporation may be transferred on the
books of the Corporation only by the holder of such shares or by his duly
authorized attorney, upon the surrender to the Corporation or its transfer agent
of the certificate for such shares properly endorsed.
Section 5.3. FIXING RECORD DATE.
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action.
Section 5.4. REGULATIONS.
The Board of Directors shall have power and authority to make all such
rules and regulations as it may deem expedient concerning the issue, transfer,
registration, cancellation and replacement of certificates for shares of stock
of the Corporation.
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ARTICLE VI
MISCELLANEOUS
Section 6.1. CORPORATE SEAL.
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal" and
"Delaware."
Section 6.2. FISCAL YEAR.
The fiscal year of the Corporation shall be determined by resolution of the
Board of Directors.
Section 6.3. NOTICES AND WAIVERS THEREOF.
Whenever any notice whatever is required by these By-Laws or by the
certificate of incorporation, or by any law to be given to any stockholder,
director or officer, such notice, except as otherwise provided by law, may be
given personally or by mail, or, in the case of directors or officers, by
telegram, cable or radiogram, addressed to such address as appears on the books
of the Corporation. Any notice given by telegram, cable or radiogram shall be
deemed to have been given when it shall have been delivered for transmission and
any notice given by mail shall be deemed to have been given when it shall have
been deposited in the United States mail with postage thereon prepaid.
Whenever a notice is required to be given by any statute, the Certificate
of Incorporation or these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the meeting
or the time stated therein, shall be deemed equivalent in all respects to such
notice.
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Section 6.4. STOCK OF OTHER CORPORATIONS OR OTHER INTERESTS.
Unless otherwise directed by the Board of Directors, the Chairman, the
President, the Secretary and such attorneys or agents of the Corporation as may
be from time to time authorized by the Board of Directors or the Chairman shall
have full power and authority on behalf of this Corporation to attend, and to
act and vote in person or by proxy at, any meeting of the holders of securities
of any corporation or other entity in which this Corporation may own or hold
shares or other securities, and at such meetings such persons shall possess and
may exercise all the rights and powers incident to the ownership of such shares
or other securities which this Corporation, as the owner or holder thereof,
might have possessed and exercised if present. The Chairman, the President, the
Secretary or such attorneys or agents may also execute and deliver on behalf of
the Corporation powers of attorney, proxies, consents, waivers and other
instruments relating to the shares or securities owned or held by this
Corporation.
ARTICLE VII
AMENDMENT
The holders of shares entitled at the time to vote for the election of
directors shall have the power to adopt, alter, amend or repeal the By-Laws of
the Corporation by vote of not less than a majority of such shares.
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