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Exhibit 3.8
THIRD AMENDED
BY-LAWS
OF
VEBE INTERNATIONAL, INC.
(a Delaware corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be established
and maintained at No. 100 West Tenth Street, Wilmington, Delaware. The
Corporation Trust Company shall be the registered agent of this corporation in
charge thereof.
Section 2. Other Offices. The corporation may have other offices, either
within or without the State of Delaware, at such place or places as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings. Annual meetings of stockholders for the
election of directors and for such other business as may be stated in the notice
of the meeting shall be held at such place, either within or without the State
of Delaware, and at such time and date as the Board of Directors, by resolution,
shall determine and as set forth in the notice of the meeting.
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Section 2. Other Meetings. Meetings of stockholders for any purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting.
Section 3. Voting. Each stockholder entitled to vote in accordance with
the terms of the Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall, except as provided in the next succeeding
sentence, be entitled to one vote, in person or by proxy, for each share of
stock entitled to vote held by such stockholder, but no proxy shall be voted
after three years from its date unless such proxy provides for a longer period.
At all elections of directors of the corporation, each share of Class A common
stock shall entitle the holder to as many votes as shall equal the number of
Class A directors to be elected and each share of Class B common stock shall
entitle the holder to as many votes as shall equal the number of Class B
directors to be elected. Each stockholder may cast all of such votes for a
single director or may distribute them among the number to be voted for, or for
any two or more of them as he may see fit, except that each holder of Class A
common stock shall vote only for Class A directors and each holder of Class B
common stock shall vote only for Class B directors.
Upon the demand of any stockholder entitled to vote, the vote for
directors and the vote upon any question before the meeting shall be by ballot.
All elections for directors shall be decided by plurality vote within each class
of common stock; all other questions shall be decided by a majority of votes
cast and entitled to vote except as otherwise provided by the Certificate of
Incorporation, by the laws of the State of Delaware or by these By-Laws.
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A complete list of the stockholders entitled to vote at the ensuing
election, arranged in alphabetical order, with the address of each, and the
number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be-inspected by any
stockholder who is present.
Section 4. Quorum. Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders;
and the presence, in person or by proxy, of stockholders holding a majority of
any class of the stock of the corporation entitled to vote for the election of
directors shall constitute a quorum at any meeting of the holders of stock of
such class for the purpose of electing a director or directors representing such
class. In case a quorum shall not be present at any meeting, a majority in
interest of the stockholders entitled to vote thereat, present in person or by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until the requisite amount of
stock entitled to vote shall be present. At such adjourned meeting at which the
requisite amount of stock entitled to vote shall be represented, any business
may be transacted which might have been transacted at the meeting as originally
noticed; `but only those stockholders entitled to
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vote at the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof.
Section 5. Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called by the President or Secretary, by resolution
of the directors, or by stockholders holding 25% or more of the outstanding
stock of the corporation entitled to vote at such meeting.
Section 6. Notice of Meetings. Written notice, stating the place, date and
time of the meeting, and in the case of a special meeting the purpose or
purposes for which such meeting is called, shall be given to each stockholder
entitled to vote thereat at his address as it appears on the records of the
corporation, not less than ten nor more than fifty days before the date of the
meeting. No business other than that stated in the notice shall be transacted at
any special meeting without the consent of the holders of more than two-thirds
of the shares entitled to vote thereat.
Section 7. Action Without Meeting. Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders
entitled to vote thereon who have not consented in writing.
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ARTICLE III
DIRECTORS
Section 1. Number and Term. The number of directors shall be five. Of that
number, there shall be two Class A directors and three Class B directors. The
number of directors may be increased or decreased by the stockholders entitled
to vote. The directors shall be elected at the annual meeting of stockholders
and may be elected at special meetings of stockholders, and each director shall
be elected to serve until his successor shall be elected and qualified.
Directors need not be stockholders.
Section 2. Removal. Any Class A director may be removed by the affirmative
vote of the holders of more than two-thirds of the shares of Class A common
stock outstanding and entitled to vote, and any Class B director may be removed
by the affirmative vote of the holders of more than two-thirds of the shares of
Class B common stock outstanding and entitled to vote, either for or without
cause at any time at a special meeting of stockholders called for the purpose;
provided, however, that if less than the entire Board of Directors is to be
removed, no director may be removed without cause if the votes cast against his
removal would be sufficient to elect him if then cumulatively voted at an
election of the class of directors of which he is a part. An election of a new
Board of Directors held at a meeting of shareholders called for such purpose
pursuant to the provision of any written agreement among shareholders holding at
least two-thirds of all of the issued and outstanding shares of stock of the
corporation entitled to vote shall not be deemed to constitute a removal of
directors within the meaning of this Section 2 of Article III.
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Section 3. Powers. The Board of Directors shall exercise all of the powers
of the corporation except such as are by law or by the Certificate of
Incorporation of the corporation or by these By-Laws conferred upon or reserved
to the stockholders.
Section 4. Voting. On any matter requiring approval of the Board of
Directors, each Class A director shall be entitled to cast a number of votes
equal to the number of outstanding shares of Class A common stock divided by the
number of Class A directors then on the Board of Directors and each Class B
director shall be entitled to cast a number of votes equal to the number of
outstanding shares of Class B common stock divided by the number of Class B
directors then on the Board of Directors. Fractional votes shall be permitted. A
director may not split his vote, but must vote all of his vote the same way on
any single matter. Except as otherwise required by law or by the Certificate of
Incorporation or by these By-Laws, approval of any matter submitted to the Board
of Directors shall require a number of affirmative votes at least equal to a
majority of the number of outstanding shares of stock of the corporation
entitled to vote, without regard to class.
Section 5. Committees. The Board of Directors may, by action approved by a
number of affirmative votes equal to more than two-thirds of the number of
outstanding shares of stock of the corporation entitled to vote, designate one
or more committees, each committee to consist of two 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 such committee or committees.
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Any such committee, to the extent provided in the resolution of the Board
of Directors, or in these By-Laws, 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 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 the
power or authority to amend the Certificate of Incorporation, to adopt an
agreement of merger or consolidation, to recommend to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, to recommend to the stockholders a dissolution of the corporation or a
revocation of a dissolution, to amend the By-Laws of the corporation, to declare
a dividend, to authorize in issuance of stock, or to take any action with
respect to any matter referred to in Article VIII of these By-Laws.
Section 6. Meetings. The newly elected directors shall hold their first
meeting for the purpose of organization and the transaction of business, if a
quorum be present, immediately after the annual meeting of stockholders; or the
time and place of such meeting may be fixed by consent in writing of all the
directors.
Regular meetings of the directors may be held without notice at such
places and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the Board may be called by the President or by the
Secretary on the written request of any two directors on at least two days'
notice to each director and shall be held at such place or places as may be
determined by the directors, or as shall be stated in the call of the meeting.
Section 7. Quorum. The presence of directors entitled to case a number of
votes equal to a majority of the outstanding shares of stock of the corporation
entitled to vote,
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and of not less than one director representing each class of stock of the
corporation entitled to vote, shall constitute a quorum for the transaction of
business. 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 until a quorum is obtained, and no further notice thereof need be given
other than by announcement at the meeting which shall be so adjourned.
Section 8. Compensation. Directors shall not receive any stated salary for
their services as directors or as members of committees, but by resolution of
the Board of Directors a fixed fee and expenses of attendance may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
Section 9. 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 a written consent thereto is signed by all members
of the Board of Directors, or of such committee as the case may be, and such
written consent is filed with the minutes of proceedings of the Board of
Directors or committee.
Section 10. Participation by Conference Telephone. Members of the Board of
Directors of the corporation, or any committee designated by such Board, may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
shall constitute presence in person at such meeting.
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ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the corporation shall be a President,
a Treasurer and a Secretary, all of whom shall be elected by the Board of
Directors and who shall hold office until their successors are elected and
qualified. In addition, the Board of Directors may elect a Chairman, one or more
Vice Presidents and such Assistant Secretaries and Assistant Treasurers as they
may deem proper. None of the officers of the corporation need be directors. The
officers shall be elected at the first meeting of the Board of Directors after
each annual meeting. More than two offices may be held by the same person.
Section 2. Other Officers and Agents. The Board of Directors may appoint
such other officers and agents as it may deem advisable, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
Section 3. Chairman. The Chairman of the Board of Directors, if one be
elected, shall preside at all meetings of the Board of Directors and he shall
have and perform such other duties as from time to time may be assigned to him
by the Board of Directors.
Section 4. President. The President shall be the chief executive officer
of the corporation and shall have the general powers and duties of supervision
and management usually vested in the office of president of a corporation. He
shall preside at all meetings of the stockholders if present thereat, and, in
the absence or non-election of the Chairman of the Board of Directors, at all
meetings of the Board of Directors, and shall have general supervision,
direction and control of the business of the corporation. Except as
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the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages and other contracts in behalf of the
corporation, and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.
Section 5. Vice President. Each Vice President shall have such powers and
shall perform such duties as shall be assigned to him by the directors.
Section 6. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board of Directors, or the President, taking proper vouchers for
such disbursements. He shall render to the President and Board of Directors at
the regular meetings of the Board of Directors, or whenever they may request it,
an account of all his transactions as Treasurer and of the financial condition
of the corporation. If required by the Board of Directors, he shall give the
corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the Board of Directors shall prescribe.
Section 7. Secretary. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these By-Laws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the President, or by the directors, or
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stockholders, upon whose requisition the meeting is called as provided by these
By-Laws. He shall record all the proceedings of the meetings of the corporation
and of the directors in a book to be kept for that purpose, and shall perform
such other duties as may be assigned to him by the directors or the President.
He shall have the custody of the seal of the corporation and shall affix the
same to all instruments requiring it, when authorized by the directors or the
President, and attest the same.
Section 8. Assistant Treasurers and Assistant Secretaries. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
Section 9. Annual Budget and Business Plan. Prior to the commencement of
each fiscal year, the President and Treasurer shall present to the Board of
Directors for approval a budget and business plan for the corporation and its
subsidiaries for such fiscal year.
ARTICLE V
MISCELLANEOUS
Section 1. Resignations. Any director, member of a committee or corporate
officer may, provided the same would not result in a breach of any contract to
which said person is a party, resign at any time. Such resignation shall be made
in writing, and shall take effect at the time specified therein, and 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.
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Section 2. Vacancies. If the office of any director becomes vacant, by
reason of death, disability, resignation, removal or otherwise, or if any newly
created directorships result from an increase in the authorized number of
directors, the President or Secretary, the remaining directors, or any
stockholders holding 25% or more of the outstanding shares of stock entitled to
vote for the election of such director or directors may call a special meeting
of stockholders for the purpose of filling such vacancy or such new
directorships; no such vacancy may be filled by the Board of Directors. If the
office of any member of a committee or corporate officer becomes vacant, by
reason of death, disability, resignation, removal or otherwise, the Board of
Directors may by action approved by a number of affirmative votes equal to more
than two-thirds of the number of outstanding shares of stock of the corporation,
appoint any qualified person to fill such vacancy, who shall hold office for the
unexpired term and until his successor shall be duly chosen.
Section 3. Certificates of Stock. Certificates of stock, signed by the
Chairman of the Board of Directors, or the President or any Vice President, and
the Treasurer or an Assistant Treasurer, or Secretary or an Assistant Secretary,
shall be issued to each stockholder certifying the number of shares owned by him
in the corporation. When such certificates are countersigned (1) by a transfer
agent other than the corporation or its employee, or (2) by a registrar other
than the corporation or its employee, the signatures of such officers may be
facsimiles.
Section 4. Lost Certificates. A new certificate of stock may be issued in
the place of any certificate theretofore issued by the corporation, alleged to
have been lost or destroyed, and the directors may, in their discretion, require
the owner of the lost or
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destroyed certificate, or his legal representatives, to give the corporation a
bond, in such sum as they may direct, not exceeding double the value of the
stock represented by such certificate, to indemnify the corporation against any
claim that may be made against it on account of the alleged loss of any such
certificate, or the issuance of any such new certificate.
Section 5. Transfer of Shares. The shares of stock of the corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the older certificates shall be surrendered to the corporation by the delivery
thereof to the person in charge of the stock transfer books and ledgers, or to
such other person as the directors may designate, by whom they shall be canceled
and new certificates shall thereupon be issued. A record shall be made of each
transfer and whenever a transfer shall be made for collateral security, and not
absolutely, its shall be so expressed in the entry of the transfer.
Section 6. Stockholders Record Date. In order that the corporation may
determine the stockholders entitled to notice of or 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. A determination of stockholders of record entitled to notice of or
to vote at a meeting of
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stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 7. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, by action approved by a number of
affirmative votes equal to more than two thirds of the number of outstanding
shares of stock of the corporation entitled to vote, out of funds legally
available therefor at any regular or special meetings, declare dividends upon
the capital stock of the corporation as and when they deem expedient. Before
declaring any dividend there may be set apart out of any funds of the
corporation available for dividends, such sum or sums as the directors from time
to time in their discretion deem proper for working capital or as a reserve fund
to meet contingencies or for equalizing dividends or for such other purposes as
the directors shall deem conducive to the interests of the corporation.
Section 8. Seal. The corporate seal shall be circular in form and shall
contain the name of the corporation, the year of its creation and the words
"CORPORATE SEAL DELAWARE." Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or otherwise reproduced.
Section 9. Fiscal Year. The fiscal year of the corporation shall be
determined by resolution of the Board of Directors. In the absence of such
determination, the fiscal year shall. be the calendar year.
Section 10. Checks. 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 be determined from time to time by
resolution of the Board of Directors.
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Section 11. Notice and Waiver of Notice. Whenever any notice is required
by these By-Laws to be given, personal notice is not meant unless expressly so
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in the mail, postage prepaid, addressed to the person
entitled thereto at his address as it appears on the records of the corporation,
and such notice shall be deemed to have been given on the day of such mailing.
Stockholders not entitled to vote shall not be entitled to receive notice of any
meetings except as otherwise provided by statute.
Whenever any notice whatever is required to be given under the provisions
of any law, or under the provisions of the Certificate of Incorporation of the
corporation or these By-Laws, 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.
ARTICLE VI
INDEMNIFICATION
To the full extent permitted by law, the corporation may indemnify any
person or his heirs, distributees, next of kin, successors, appointees,
executors, administrators, legal representatives and assigns 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 civil, criminal, administrative or
investigative, 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 or other enterprise, domestic or foreign,
against expenses, attorneys'
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fees, court costs, judgments, fines, amounts paid in settlement and other losses
actually and reasonably incurred by him in connection with such action, suit or
proceeding.
ARTICLE VII
AMENDMENTS
These By-Laws may be altered or repealed and By-Laws may be made at any
annual meeting of all of the stockholders or at any special meeting thereof by
the affirmative vote of more than two-thirds of the stock issued and outstanding
and entitled to vote thereat, or by a resolution approved by the Board of
Directors by a number of affirmative votes equal to more than two-thirds of the
number of outstanding shares of stock of the corporation entitled to vote at any
regular meeting of the Board of Directors or at any special meeting of the Board
of Directors.
ARTICLE VIII
FUNDAMENTAL ISSUES
Except as otherwise provided by the Certificate of Incorporation or by the
laws of the State of Delaware, in no event may action be taken by the
stockholders or the Board of Directors with regard to each of the following
matters except by the affirmative vote of the holders of more than two-thirds,
of the issued and outstanding shares of stock of the corporation entitled to
vote or by a resolution approved by the Board of Directors by a number of
affirmative votes equal to more than two-thirds of the number of outstanding
shares of stock of the corporation entitled to vote, provided that any such
matter included in an annual budget and business plan previously approved by the
holders of more than two-thirds of the issued and outstanding shares of stock of
the corporation entitled to
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vote, or by a resolution approved by the Board of Directors by a number of
affirmative votes equal to more than two-thirds of the number of outstanding
shares of stock of the corporation entitled to vote, shall not require further
approval pursuant to this Article VIII:
(i) issuance of additional shares of capital stock or other increase of
a stockholder's equity;
(ii) merger or consolidation with another entity;
(iii) transactions with any stockholder or its affiliates other than in
the ordinary course of business;
(iv) contracts or commitments for capital expenditures in excess of
$500,000 per item or group of related items or for purchase or sale
of assets other than in the ordinary course of business;
(v) incurrence of liabilities in excess of $500,000 in the aggregate,
except in the ordinary course of business;
(vi) redemption of stock;
(vii) changes in compensation of any Shareholder Employee;
(viii) material changes in employee benefits of any Shareholder Employee
except under tax-qualified employee benefit plans;
(ix) material changes in accounting methods or policies;
(x) removal or replacement of officers;
(xi) approval of the annual budget and business plan in accordance with
Section 9 of Article IV of these By-Laws; and
(xii) dissolution.
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As used herein, the term "Shareholder Employee" means any individual
officer, director, employee, consultant or agent of the corporation who owns
beneficially or of record, directly or indirectly, 5% or more of the equity or
voting power of any stockholder or of any corporation or entity which owns
beneficially or of record, directly or indirectly, 50% or more of the equity or
voting power of any stockholder.