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EXHIBIT 3.8
BYLAWS
OF
SPRING VALLEY SCENTS, INC.
(A Texas Corporation)
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TABLE OF CONTENTS
ARTICLE I
OFFICES
Section 1. Principal Office ........................................... 1
Section 2. Other Offices .............................................. 1
ARTICLE II
SHAREHOLDERS
Section 1. Time and Place of Meetings ................................. 1
Section 2. Annual Meetings ............................................ 1
Section 3. Special Meetings ........................................... 1
Section 4. Notice ..................................................... 1
Section 5. Closing of Share Transfer Records and Fixing Record
Dates for Matters Other than Consents to Action ............ 2
Section 6. Fixing Record Dates for Consents to Action ................. 2
Section 7. List of Shareholders ....................................... 3
Section 8. Quorum ..................................................... 3
Section 9. Voting ..................................................... 3
Section 10. Action by Consent .......................................... 5
Section 11. Presence at Meetings by Means of Communications
Equipment .................................................. 5
Section 12. Cumulative Voting .......................................... 6
ARTICLE III
DIRECTORS
Section 1. Number of Directors ........................................ 6
Section 2. Vacancies .................................................. 6
Section 3. General Powers ............................................. 7
Section 4. Place of Meetings .......................................... 7
Section 5. Annual Meetings ............................................ 7
Section 6. Regular Meetings ........................................... 7
Section 7. Special Meetings ........................................... 7
Section 8. Quorum and Voting .......................................... 7
Section 9. Committees of the Board of Directors ....................... 8
Section 10. Compensation of Directors .................................. 8
Section 11. Action by Unanimous Consent ................................ 9
Section 12. Presence at Meetings by Means of Communications
Equipment .................................................. 9
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ARTICLE IV
NOTICES
Section 1. Form of Notice ............................................ 9
Section 2. Waiver .................................................... 9
Section 3. When Notice Unnecessary ................................... 9
ARTICLE V
OFFICERS
Section 1. General ................................................... 10
Section 2. Election .................................................. 10
Section 3. Chairman of the Board ..................................... 10
Section 4. President ................................................. 11
Section 5. Vice President ............................................ 11
Section 6. Assistant Vice Presidents ................................. 11
Section 7. Secretary ................................................. 11
Section 8. Assistant Secretaries ..................................... 12
Section 9. Treasurer ................................................. 12
Section 10. Assistant Treasurers ...................................... 12
Section 11. Bonding ................................................... 12
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
Section 1. Form of Certificates ...................................... 13
Section 2. Lost Certificates ......................................... 13
Section 3. Restrictions to Stock Transfers ........................... 13
Section 4. Transfer of Shares ........................................ 14
Section 5. Registered Shareholders ................................... 14
ARTICLE VII
INDEMNIFICATION
Section 1. General ................................................... 15
Section 2. Insurance ................................................. 15
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ARTICLE VIII
GENERAL PROVISIONS
Section 1. Distributions and Share Dividends .......................... 16
Section 2. Reserves ................................................... 16
Section 3. Fiscal Year ................................................ 16
Section 4. Seal ....................................................... 16
Section 5. Resignation ................................................ 16
ARTICLE IX
AMENDMENTS TO BYLAWS .................................................. 17
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ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of the Corporation
shall be in Dallas County, Texas, or such other county as the Board of Directors
may from time to time designate.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Texas as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
SHAREHOLDERS
Section 1. Time and Place of Meetings. Meetings of the shareholders
shall be held at such time and at such place, within or without the State of
Texas, as shall be determined by the Board of Directors.
Section 2. Annual Meetings. Annual meetings of shareholders shall be
held on such date and at such time as shall be determined by the Board of
Directors. At each annual meeting the shareholders shall elect a Board of
Directors and transact such other business as may properly be brought before the
meeting.
Section 3. Special Meetings. Special meetings of the shareholders may
be called at any time by the Chief Executive Officer, the President or the Board
of Directors, and shall be called by the Chief Executive Officer, the President
or the Secretary at the request in writing of the holders of not less than ten
percent (10%) of the voting power represented by all the shares issued,
outstanding and entitled to be voted at the proposed special meeting, unless the
Articles of Incorporation provide for a different percentage, in which event
such provision of the Articles of Incorporation shall govern. Such request shall
state the purpose or purposes of the proposed meeting. Business transacted at
special meetings shall be confined to the purposes stated in the notice of the
meeting.
Section 4. Notice. Written or printed notice stating the place, day and
hour of any shareholders' meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than 60 days before the date of the meeting, either personally
or by mail, by or at the direction of the Chief Executive Officer, President,
Secretary or the officer or person calling the meeting, to each shareholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, postage prepaid, addressed
to the shareholder at his address as it appears on the share transfer records of
the Corporation, with postage thereupon prepaid.
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Section 5. Closing Of Share Transfer Records and Fixing Record Dates
for Matters Other than Consents to Action. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive payment of any distribution or
share dividend, or in order to make a determination of shareholders for any
other proper purpose (other than determining shareholders entitled to consent to
action by shareholders proposed to be taken without a meeting of shareholders),
the Board of Directors of the Corporation may provide that the share transfer
records shall be closed for a stated period but not to exceed, in any case, 60
days. If the share transfer records shall be closed for the purpose of
determining shareholders, such records shall be closed for at least ten days
immediately preceding such meeting. In lieu of closing the share transfer
records, the Board of Directors may fix in advance a date as the record date for
any such determination of shareholders, such date in any case to be not more
than 60 days and, in the case of a meeting of shareholders, not less than ten
days prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If the share transfer records are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a distribution (other than a distribution
involving a purchase or redemption by the Corporation of any of its own shares)
or share dividend, the date on which notice of the meeting is mailed or the date
on which the resolution of the Board of Directors declaring such distribution or
share dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as provided in this section,
such determination shall apply to any adjournment thereof except where the
determination has been made through the closing of share transfer records and
the stated period of closing has expired.
Section 6. Fixing Record Dates for Consents to Action. Unless a record
date shall have previously been fixed or determined pursuant to this Section 6,
whenever action by shareholders is proposed to be taken by consent in writing
without a meeting of shareholders, the Board of Directors may fix a record date
for the purpose of determining shareholders entitled to consent to that action,
which record date shall not precede, and shall not be more than ten days after,
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. If no record date has been fixed by the Board of Directors
and the prior action of the Board of Directors is not required by the Texas
Business Corporation Act (herein called the "Act"), the record date for
determining shareholders entitled to consent to action in writing without a
meeting shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is delivered to the Corporation as
provided in Section 10 of this Article II. Delivery shall be by hand or by
certified or registered mail, return receipt requested. Delivery to the
Corporation's principal place of business shall be addressed to the President or
the Chief Executive Officer of the Corporation. If no record date shall have
been fixed by the Board of Directors and prior action of the Board of Directors
is required by the Act, the record date for determining shareholders entitled to
consent to action in writing without a meeting shall be at the close of business
on the date on which the Board of Directors adopts a resolution taking such
prior action.
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Section 7. List of Shareholders. The officer or agent of the
Corporation having charge of the share transfer records for shares of the
Corporation shall make, at least ten days before each meeting of the
shareholders, a complete list of the shareholders entitled to vote at such
meeting or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of voting shares held by each, which list, for a
period of ten days prior to such meeting, shall be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original share transfer
records shall be prima facie evidence as to who are the shareholders entitled
to examine such list or transfer records or to vote at any meeting of
shareholders. Failure to comply with the requirements of this Section 7 shall
not affect the validity of any action taken at such meeting.
Section 8. Quorum. With respect to any matter, a quorum shall be
present at a meeting of shareholders if the holders of shares having a majority
of the voting power represented by all issued and outstanding shares entitled to
vote on that matter are present in person or represented by proxy, unless
otherwise provided by the Articles of Incorporation in accordance with the Act.
Once a quorum is present at a meeting of shareholders, the shareholders
represented in person or by proxy at the meeting may conduct such business as
may properly be brought before the meeting until it is adjourned, and the
subsequent withdrawal from the meeting of any shareholder or the refusal of any
shareholder represented in person or by proxy to vote shall not affect the
presence of a quorum at the meeting. If, however, a quorum shall not be present
at any meeting of shareholders, the shareholders entitled to vote, present in
person or represented by proxy, shall have power to adjourn the meeting, without
notice (other than announcement at the meeting at which the adjournment is taken
of the time and place of the adjourned meeting), until such time and to such
place as may be determined by a vote of the holders of a majority of the shares
represented in person or by proxy at such meeting until a quorum shall be
present. At such adjourned meeting at which a quorum is present, any business
may be transacted which might have been transacted at the meeting as originally
noticed.
Section 9. Voting. When it quorum is present at any meeting, the
vote of the holders of a majority of the shares entitled to vote on a matter,
present in person or represented by proxy at such meeting, shall decide such
matter brought before such meeting, other than the election of directors or a
matter for which the affirmative vote of the holders of a specified portion of
the shares entitled to vote is required by the Act, and shall be the act of the
shareholders, unless otherwise provided by the Articles of Incorporation or
these Bylaws in accordance with the Act.
Unless otherwise provided in the Articles of Incorporation or these
Bylaws in accordance with the Act, directors of the Corporation shall be elected
by a plurality of the votes cast by the holders of shares entitled to vote in
the election of directors at a meeting of shareholders at which a quorum is
present.
At every meeting of the shareholders, each shareholder shall be
entitled to such number of votes, in person or by proxy, for each share having
voting power held by such shareholder, as is specified in the Articles of
Incorporation (including the resolution of the
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Board of Directors (or a committee thereof) creating such shares), except to the
extent that the voting rights of the shares of any class or series are limited
or denied by the Articles of Incorporation. At each election of directors, every
shareholder shall be entitled (a) to cast, in person or by proxy, the number of
votes to which the shares owned by him are entitled for as many persons as
there are directors to be elected and for whose election he has a right to vote
or (b) unless prohibited by the Articles of Incorporation and subject to the
immediately succeeding sentence of this paragraph, to cumulate the votes to
which the shares owned by him are entitled by giving one candidate as many
votes as the number of such directors multiplied by the shares owned by him
shall equal or by distributing such votes on the same principle among any
number of such candidates. Cumulative voting shall not be allowed in an
election of directors unless a shareholder who intends to cumulate his votes
shall have given written notice of such intention to the Secretary of the
Corporation on or before the day preceding the election at which such
shareholder intends to cumulate his votes; all shareholders entitled to vote
cumulatively may cumulate their votes if any shareholder gives such written
notice. Every proxy shall be in writing and be executed by the shareholder. A
telegram, telex, cablegram, or similar transmission by the shareholder, or a
photographic, photostatic, facsimile, or similar reproduction of a writing
executed by the shareholder, shall be treated as an execution in writing for
the purposes of this Section 9. No proxy shall be valid after 11 months from
the date of its execution unless otherwise provided therein. Each proxy shall
be revocable unless (i) the proxy form conspicuously states that the proxy is
irrevocable, and (ii) the proxy is coupled with an interest, as defined in the
Act and other Texas law.
Shares standing in the name of another corporation may be voted by such
officer, agent or proxy as the bylaws of such corporation may prescribe or, in
the absence of such provision, as the board of directors of such corporation may
determine.
Shares held by an administrator, executor, guardian or conservator may
be voted by him, either in person or by proxy, without a transfer of such
shares into his name. Shares standing in the name of a trustee may be voted by
him, either in person or by proxy, but no trustee shall be entitled to vote
shares held by him without a transfer of such shares into his name as trustee.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without being transferred into his name, if such authority is
contained in an appropriate order of the court that appointed the receiver.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Treasury shares, shares of the Corporation's stock owned by another
corporation the majority of the voting stock of which is owned or controlled by
the Corporation, and shares of its own stock held by the Corporation in a
fiduciary capacity shall not be voted, directly or
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indirectly, at any meeting. and shall not be counted in determining the total
number of outstanding shares at any given time.
Section 10. Action by Consent. Any action required or permitted to be
taken at a meeting of the shareholders 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 all of the shareholders entitled to vote
with respect to the action that is the subject of the consent.
In addition, if the Articles of Incorporation so provide, any action
required or permitted to be taken at a meeting of the shareholders may be taken
without a meeting, without prior notice, and without a vote if a consent or
consents in writing, setting forth the action so taken, shall be signed by the
holder or holders of shares having not less than the minimum number of votes
that would be necessary to take such action at a meeting at which the holders of
all shares entitled to vote on the action were present and voted. Prompt notice
of the taking of any action by shareholders without a meeting by less than
unanimous written consent shall be given to those shareholders who did not
consent in writing to the action.
Every written consent signed by the holders of less than all the shares
entitled to vote with respect to the action that is the subject of the consent
shall bear the date of signature of each shareholder who signs the consent. No
written consent signed by the holders of less than all the shares entitled to
vote with respect to the action that is the subject of the consent shall be
effective to take the action that is the subject of the consent unless, within
60 days after the date of the earliest dated consent delivered to the
Corporation as set forth below in this Section 10, the consent or consents
signed by the holder or holders of shares having not less than the minimum
number of votes that would be necessary to take the action that is the subject
of the consent are delivered to the Corporation by delivery to its registered
office, registered agent, principal place of business, transfer agent,
registrar, exchange agent, or an officer or agent of the Corporation having
custody of the records in which proceedings of meetings of shareholders are
recorded. Delivery shall be by hand or certified or registered mail, return
receipt requested. Delivery to the Corporation's principal place of business
shall be addressed to the President or the Chief Executive Officer of the
Corporation.
A telegram, telex, cablegram, or similar transmission by a shareholder,
or a photographic, photostatic, facsimile, or similar reproduction of a writing
signed by a shareholder, shall be regarded as signed by the shareholder for the
purposes of this Section 10.
Section 11. Presence at Meetings by Means of Communications Equipment.
Shareholders may participate in and hold a meeting of the shareholders 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 pursuant to this Section 11 shall constitute presence in person at
such meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
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Section 12. Cumulative Voting. Unless otherwise provided by law, at
each election for Directors every shareholder entitled to vote at such election
shall have the right to vote, in person or by proxy, the number of shares owned
by him for as many persons as there are Directors to be elected and for whose
election he has a right to vote, or to cumulate his votes by giving one
candidate as many votes as the number of such Directors multiplied by the number
of his shares shall equal, or by distributing such votes on the same principle
among any number of candidates.
ARTICLE III
DIRECTORS
Section 1. Number of Directors. The number of directors of the
Corporation shall be fixed from time to time by resolution of the Board of
Directors, but in no case shall the number of directors be less than three.
Until otherwise fixed by resolution of the Board of Directors, the number of
directors shall be the number stated in the Articles of Incorporation. No
decrease in the number of directors shall have the effect of reducing the term
of any incumbent director. Directors shall be elected at each annual meeting of
the shareholders by the holders of shares entitled to vote in the election of
directors, except as provided in Section 2 of this Article III, and each
director shall hold office until the annual meeting of shareholders following
his election or until his successor is elected and qualified. Directors need not
be residents of the State of Texas or shareholders of the Corporation.
Section 2. Vacancies. Subject to other provisions of this Section 2,
any vacancy occurring in the Board of Directors may be filled by election at an
annual or special meeting of the shareholders called for that purpose or by the
affirmative vote of a majority of the remaining directors, though the remaining
directors may constitute less than a quorum of the Board of Directors as fixed
by Section 8 of this Article III. A director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office. Any directorship to
be filled by reason of an increase in the number of directors shall be filled by
election at an annual meeting or at a special meeting of shareholders called for
that purpose or may be filled by the Board of Directors for a term of office
continuing only until the next election of one or more directors by the
shareholders; provided that the Board of Directors may not fill more than two
such directorships during the period between any two successive annual meetings
of shareholders. Shareholders holding a majority of shares then entitled to vote
at an election of directors may, at any time and with or without cause,
terminate the term of office of all or any of the directors by a vote at any
annual or special meeting called for that purpose. Such removal shall be
effective immediately upon such shareholder action even if successors are not
elected simultaneously, and the vacancies on the Board of Directors caused by
such action shall be filled only by election by the shareholders.
Notwithstanding the foregoing, whenever the holders of any class or
series of shares or group of classes or series of shares are entitled to elect
one or more directors by the provisions of the Articles of Incorporation, only
the holders of shares of that class or series or group shall be entitled to vote
for or against the removal of any director elected by the holders of shares of
that class or series or group; and any vacancies in such directorships and
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any newly created directorships of such class or series or group to be filled by
reason of an increase in the number of such directors may be filled by the
affirmative vote of a majority of the directors elected by such class or series
or group then in office or by a sole remaining director so elected, or by the
vote of the holders of the outstanding shares of such class or series or group,
and such directorships shall not in any case be filled by the vote of the
remaining directors or the holders of the outstanding shares as a whole unless
otherwise provided in the Articles of Incorporation.
Section 3. General Powers. The powers of the Corporation shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of, its Board of Directors,
which may do or cause to be done all such lawful acts and things, as are not by
the Act, the Articles of Incorporation or these Bylaws directed or required to
be exercised or done by the shareholders.
Section 4. Place of Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Texas.
Section 5. Annual Meetings. The first meeting of each newly elected
Board of Directors shall be held, without further notice, immediately following
the annual meeting of shareholders at the same place, unless by the majority
vote or unanimous consent of the directors then elected and serving, such time
or place shall be changed.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
may be held with or without notice at such time and place as the Board of
Directors may determine by resolution.
Section 7. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the Chief Executive Officer and shall be
called by the Secretary on the written request of a majority of the incumbent
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the place for holding any special meeting of the
Board of Directors called by such person or persons. Notice of any special
meeting shall be given at least 24 hours previous thereto if given either
personally (including written notice delivered personally or telephone notice)
or by telex, telecopy, telegram or other means of immediate communication, and
at least 72 hours previous thereto if given by written notice mailed or
otherwise transmitted to each director at the address of his business or
residence. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting. Any director may waive notice of any
meeting, as provided in Section 2 of Article IV of these Bylaws. The attendance
of a director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
Section 8. Quorum and Voting. At all meetings of the Board of
Directors, the presence of a majority of the number of directors fixed in the
manner provided in Section 1 of this Article III shall constitute a quorum for
the transaction of business, unless a different
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number or portion is required by law, the Articles of Incorporation, or these
Bylaws. At all meetings of committees of the Board of Directors (if one or more
be designated in the manner described in Section 9 of this Article III), the
presence of a majority of the number of directors fixed from time to time by
resolution of the Board of Directors to serve as members of such committees
shall constitute a quorum for the transaction of business. The affirmative vote
of at least a majority of the directors present and entitled to vote at any
meeting of the Board of Directors or a committee of the Board of Directors at
which there is a quorum shall be the act of the Board of Directors or the
committee, except as may be otherwise specifically provided by the Act, the
Articles of Incorporation or these Bylaws. Directors may not vote by proxy at
any meeting of the Board of Directors. Directors with an interest in a business
transaction of the Corporation and directors who are directors or officers or
have a financial interest in any other corporation, partnership, association or
other organization with which the Corporation is transacting business may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee of the Board of Directors to authorize such business
transaction. If a quorum shall not be present at any meeting of the Board of
Directors or a committee thereof, a majority of the directors present thereat
may adjourn the meeting, without notice other than announcement at the meeting,
until such time and to such place as may be determined by such majority of
directors, until a quorum shall be present.
Section 9. Committees of the Board of Directors. The Board of Directors
may, by resolution passed by a majority of the whole Board of Directors,
designate from among its members one or more committees, each of which shall be
composed of one or more of its members, and may designate one or more of its
members as alternate members of any committee, who may, subject to any
limitations imposed by the Board of Directors, replace absent or disqualified
members at any meeting of that committee. Any such committee, to the extent
provided in the resolution of the Board of Directors designating the committee
or in the Articles of Incorporation or these Bylaws, shall have and may exercise
all of the authority of the Board of Directors of the Corporation, except where
action of the Board of Directors is required by the Act or by the Articles of
Incorporation. Any member of a committee of the Board of Directors may be
removed, for or without cause, by the affirmative vote of a majority of the
whole Board of Directors. If any vacancy or vacancies occur in a committee of
the Board of Directors caused by death, resignation, retirement,
disqualification, removal from office or otherwise, the vacancy or vacancies
shall be filled by the affirmative vote of a majority of the whole Board of
Directors. Such committee or committees shall have such name or names as may be
designated by the Board of Directors and shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
Section 10. Compensation of Directors. Unless otherwise provided by
resolution of the Board of Directors, directors, as members of the Board of
Directors or of any committee thereof, shall not be entitled to receive any
stated salary for their services. Nothing herein contained, however, shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
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Section 11. Action by Unanimous Consent. 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, setting
forth the action so taken, is signed by all the members of the Board of
Directors or the committee, as the case may be, and such written consent shall
have the same force and effect as a unanimous vote at a meeting of the Board of
Directors.
Section 12. Presence at Meetings by Means of Communications Equipment.
Members of the Board of Directors of the Corporation or any committee designated
by the Board of Directors, may participate in and hold 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 pursuant to this Section 12 shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE IV
NOTICES
Section 1. Form of Notice. Whenever under the provisions of the Act,
the Articles of Incorporation or these Bylaws, notice is required to be given to
any director or shareholder, and no provision is made as to how such notice
shall be given, it shall not be construed to mean personal notice exclusively,
but any such notice may be given in writing, by mail, postage prepaid, or by
telex, telecopy, or telegram, or other means of immediate communication,
addressed or transmitted to such director or shareholder at such address as
appears on the books of the Corporation. Any notice required or permitted to be
given by mail shall be deemed to be given at the time when the same be thus
deposited, postage prepaid, in the United States mail as aforesaid. Any notice
required or permitted to be given by telex, telecopy, telegram, or other means
of immediate communication shall be deemed to be given at the time of actual
delivery.
Section 2. Waiver. Whenever under the provisions of the Act, the
Articles of Incorporation or these Bylaws, any notice is required to be given to
any director or shareholder of the Corporation, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or after
the time stated in such notice, shall be equivalent to the giving of such
notice.
Section 3. When Notice Unnecessary. Whenever, under the provisions of
the Act, the Articles of Incorporation or these Bylaws, any notice is required
to be given to any shareholder, such notice need not be given to the shareholder
if:
(a) notice of two consecutive annual meetings and all notices of
meetings held during the period between those annual meetings, if
any, or
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(b) all (but in no event less than two) payments (if sent by first
class mail) of distributions or interest on securities during a
12-month period,
have been mailed to that person, addressed at his address as shown on the
records of the Corporation, and have been returned undeliverable. Any action or
meeting taken or held without notice to such a person shall have the same force
and effect as if the notice had been duly given. If such a person delivers to
the Corporation a written notice setting forth his then current address, the
requirement that notice be given to that person shall be reinstated.
ARTICLE V
OFFICERS
Section 1. General. The elected officers of the Corporation shall be a
President and a Secretary. The Board of Directors may also elect or appoint a
Chairman of the Board, one or more Vice Presidents, one or more Assistant Vice
Presidents, one or more Assistant Secretaries, a Treasurer, one or more
Assistant Treasurers, and such other officers as may be deemed necessary, all
of whom shall also be officers. Two or more offices may be held by the same
person.
Section 2. Election. The Board of Directors shall elect the officers of
the Corporation at each annual meeting of the Board of Directors. The Board of
Directors may appoint such other officers and agents as it shall deem necessary
and shall determine the salaries of all officers and agents from time to time.
The officers shall hold office until their successors are chosen and qualified.
No officer need be a member of the Board of Directors except the Chairman of the
Board, if one be elected. Any officer elected or appointed by the Board of
Directors may be removed, with or without cause, at any time by a majority vote
of the whole Board. Election or appointment of an officer or agent shall not of
itself create contract rights.
Section 3. Chairman of the Board. The Chairman of the Board, if any,
shall be the Chief Executive Officer of the Corporation and, subject to the
provisions of these Bylaws, shall have general supervision of the affairs of the
Corporation and shall have general and active control of all its business. He
shall preside, when present, at all meetings of shareholders and at all meetings
of the Board of Directors. He shall see that all orders and resolutions of the
Board of Directors and the shareholders are carried into effect. He shall have
general authority to execute bonds, deeds and contracts in the name of the
Corporation and affix the corporate seal thereto; to sign stock certificates; to
cause the employment or appointment of such employees and agents of the
Corporation as the proper conduct of operations may require, and to fix their
compensation, subject to the provisions of the Bylaws; to remove or suspend any
employee or agent who shall have been employed or appointed under his authority
or under authority of an officer subordinate to him; to suspend for cause,
pending final action by the authority which shall have elected or appointed him,
any officer subordinate to the Chairman of the Board; and, in general, to
exercise all the powers and authority usually appertaining to the chief
executive officer of a corporation, except as otherwise provided in these
Bylaws.
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Section 4. President. In the absence of a Chairman of the, Board, the
President shall be the ranking and Chief Executive Officer of the Corporation,
and shall have the duties and responsibilities, and the authority and power, of
the Chairman of the Board. The President shall be the Chief Operating Officer of
the Corporation and as such shall have, subject to review and approval of the
Chairman of the Board, if one be elected, the responsibility for the operation
of the Corporation and the authority of the Chairman of the Board.
Section 5. Vice Presidents. In the absence of the President or in the
event of his inability or refusal to act, the Vice President, if any (or in the
event there be more than one, the Vice Presidents in the order designated or, in
the absence of any designation, then in the order of their election), shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The Vice
President shall perform such other duties and have such other powers as the
Board of Directors, the Chief Executive Officer or the Chief Operating Officer
may from time to time prescribe. The Vice President in charge of finance, if
any, shall also perform the duties and assume the responsibilities described in
Section 9 of this Article for the Treasurer, and shall report directly to the
Chief Executive Officer of the Corporation.
Section 6. Assistant Vice Presidents. In the absence of a Vice
President or in the event of his inability or refusal to act, the Assistant Vice
President, if any (or, if there be more than one, the Assistant Vice Presidents
in the order designated or, in the absence of any designation, then in the order
of their election), shall perform the duties and exercise the powers of that
Vice President, and shall perform such other duties and have such other powers
as the Board of Directors, the Chief Executive Officer, the Chief Operating
Officer or the Vice President under whose supervision he is appointed may from
time to time prescribe.
Section 7. Secretary. The Secretary shall attend and record minutes of
the proceedings of all 4 meetings of the Board of Directors and any committees
thereof and all meetings of the shareholders. He shall file the records of such
meetings in one or more books to be kept by him for that purpose. Unless the
Corporation has appointed a transfer agent or other agent to keep such a record,
the Secretary shall also keep at the Corporation's registered office or
principal place of business a record of the original issuance of shares issued
by the Corporation and a record of each transfer of those shares that have been
presented to the Corporation for registration of transfer. Such records shall
contain the names and addresses of all past and current shareholders of the
Corporation and the number and class of shares issued by the Corporation held by
each of them. He shall give, or cause to be given, notice of all meetings of the
shareholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or the Chief
Executive Officer, under whose supervision he shall be. He shall have custody of
the corporate seal of the Corporation and he, or an Assistant Secretary, shall
have authority to affix the same to any instrument requiring it, and when so
affixed, it may be attested by his signature or by the signature of such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature. The Secretary shall keep and account for all books, documents,
papers and records of the Corporation except those for which some other officer
or agent is
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properly accountable. He shall have authority to sign stock certificates and
shall generally perform all the duties usually appertaining to the office of the
secretary of a corporation
Section 8. Assistant Secretaries. In the absence of the Secretary or
in the event of his inability or refusal to act, the Assistant Secretary, if any
(or, if there be more than one, the Assistant Secretaries in the order
designated or, in the absence of any designation, then in the order of their
election), shall perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the Board of
Directors, the Chief Executive Officer or the Secretary may from time to time
prescribe.
Section 9. Treasurer. The Treasurer, if any (or the Vice President
in charge of finance, if one be elected), shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, 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 (which
shall be renewed every six years) in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration of the Corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the Corporation. The Treasurer shall be under the
supervision of the Vice President in charge of finance, if any, and he shall
perform such other duties as may be prescribed by the Board of Directors, the
Chief Executive Officer or any such Vice President in charge of finance.
Section 10. Assistant Treasurers. In the absence of the Treasurer or
in the event of his inability or refusal to act, the Assistant Treasurer, if one
be elected (or, if there shall be more than one, the Assistant Treasurer in the
order designated or, in the absence of any designation, then in the order of
their election), shall perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors, the Chief Executive Officer or the Treasurer may from time
to time prescribe.
Section 11. Bonding. If required by the Board of Directors, all or
certain of the officers shall give the Corporation a bond, in such form, in such
sum and with such surety or sureties as shall be satisfactory to the Board, for
the faithful performance of the duties of their office and for the restoration
to the Corporation, in case of their death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in their possession or under their control belonging to the
Corporation.
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ARTICLE VI
CERTIFICATES REPRESENTING SHARES
Section 1. Form of Certificates. The Corporation shall deliver
certificates representing all shares to which shareholders are entitled.
Certificates representing shares of the Corporation shall be in such form as
shall be approved and adopted by the Board of Directors and shall be numbered
consecutively and entered in the share transfer records of the Corporation as
they are issued. Each certificate shall state on the face thereof that the
Corporation is organized under the laws of the State of Texas, the name of the
registered holder, the number and class of shares, and the designation of the
series, if any, which said certificate represents, and either the par value of
the shares or a statement that the shares are without par value. Each
certificate shall also set forth on the back thereof a full or summary statement
of matters required by the Act or the Articles of Incorporation to be described
on certificates representing shares, and shall contain a conspicuous statement
on the face thereof referring to the matters set forth on the back thereof.
Certificates shall be signed by the Chairman of the Board, President or any Vice
President and the Secretary or any Assistant Secretary, and may be sealed with
the seal of the Corporation. Either the seal of the Corporation or the
signatures of the Corporation's officers or both may be facsimiles. In case any
officer or officers who have signed, or whose facsimile signature or signatures
have been used on 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 have been delivered by the
Corporation or its agents, such certificate or certificates may nevertheless be
issued and delivered as though the person or persons who signed the certificate
or certificates or whose facsimile signature or signatures have been used
thereon had not ceased to be such officer or officers of the Corporation.
Section 2. Lost Certificates. The Corporation may direct that a new
certificate be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost or
destroyed. When authorizing the issue of a new certificate, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of the lost or destroyed certificate, or his
legal representative, to advertise the same in such manner as it shall require
and/or give the Corporation a bond in such form, in such sum, and with such
surety or sureties as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section 3. Restrictions to Stock Transfers. All of the corporation's
issued stock shall be made subject to restrictions on the transferability as the
same may from time to time by agreement between the holders of said stock as the
same may be regulated by these Bylaws.
No shareholder shall have the right to sell, assign, pledge,
transfer or otherwise dispose of any share or shares of capital stock of this
Corporation without first offering such shares for sale to the corporation at
book value per share. Such offer shall be made in writing, signed
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by the shareholder and sent by registered or certified mail to the corporation
at its principal place of business. Such offer shall remain open for acceptance
by the corporation for a period of thirty (30) days from the date of mailing. If
the corporation fails within said period to accept the offer, the shareholder
shall have the right to dispose of such shares or any portion thereof to any of
the remaining person or persons who are presently shareholders in said
corporation. Said offer shall be made according to the same procedure set out
for making said offer to the corporation.
If more than one shareholder in said corporation desires to purchase
said shares, the shareholders desiring to so purchase may purchase in the same
ratio as their shareholding in said corporation.
If the corporation fails or the shareholders fail within the period
above mentioned to accept the offer of the selling shareholder, then such
shareholder has the right to dispose of such shares of stock or any part thereof
to any other person or persons and on the terms and conditions as he sees fit.
The death of any shareholder shall automatically be considered a
proposed sale or transfer of any stock owned by said shareholder and be subject
to all provisions herein set forth. This provision shall be binding upon any
executor, administrator or other legal representative of any shareholder. This
provision shall be embodied in writing, printed or stamped upon each certificate
of stock and shall be a part thereof, binding on each and every, present or
future, owner regardless of how such stock was acquired.
Section 4. Transfer of Shares. Shares of stock shall be transferable
only on the share transfer records of the Corporation by the holder thereof in
person or by his duly authorized attorney. Subject to any restrictions on
transfer set forth in the Articles of Incorporation, these Bylaws or any
agreement among shareholders to which this Corporation is a party or has notice,
upon surrender to the Corporation or to the transfer agent of the Corporation of
a certificate representing shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation or the transfer agent of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 5. Registered Shareholders. Except as otherwise provided in
the Act or other Texas law, the Corporation shall be entitled to regard the
person in whose name any shares issued by the Corporation are registered in the
share transfer records of the Corporation at any particular time (including,
without limitation, as of the record date fixed pursuant to Section 5 or Section
6 of Article II hereof) as the owner of those shares and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares on the part of any other person, whether or not it shall have express
or other notice thereof.
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ARTICLE VII
INDEMNIFICATION
Section 1. General. The Corporation shall indemnify persons who are
or were a director or officer of the Corporation both in their capacities as
directors and officers of the Corporation and, if serving at the request of the
Corporation as a director, officer, trustee, employee, agent or similar
functionary of another foreign or domestic corporation, trust, partnership,
joint venture, sole proprietorship, employee benefit plan or other enterprise,
in each of those capacities, against any and all liability and reasonable
expense that may be incurred by them in connection with or resulting from (a)
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative (collectively, a
"Proceeding"), (b) an appeal in such a Proceeding, or (c) any inquiry or
investigation that could lead to such a Proceeding, all to the full extent
permitted by Article 2.02-1 of the Act. The Corporation shall pay or reimburse,
in advance of the final disposition of the Proceeding, to all persons who are or
were a director or officer of the Corporation all reasonable expenses incurred
by such person who was, is or is threatened to be made a named defendant or
respondent in a Proceeding to the full extent permitted by Article 2.02-1 of the
Act. The Corporation shall indemnify persons who are or were an employee or
agent (other than a director or officer) of the Corporation, or persons who are
not or were not employees or agents of the Corporation but who are or were
serving at the request of the Corporation as a director, officer, trustee,
employee, agent or similar functionary of another foreign or domestic
corporation, trust, partnership, joint venture, sole proprietorship, employee
benefit plan or other enterprise (collectively, along with the directors and
officers of the Corporation, such persons are referred to herein as "Corporate
Functionaries") against any and all liability and reasonable expense that may be
incurred by them in connection with or resulting from (a) any Proceeding, (b) an
appeal in such a Proceeding, or (c) any inquiry or investigation that could lead
to such a Proceeding, all to the full extent permitted by Article 2.02-1 of the
Act. The rights of indemnification provided for in this Article VII shall be in
addition to all rights to which any Corporate Functionary may be entitled under
any agreement or vote of shareholders or as a matter of law or otherwise.
Section 2. Insurance. The Corporation may purchase or maintain
insurance on behalf of any Corporate Functionary against any liability asserted
against him and incurred by him in such a capacity or arising out of his status
as a Corporate Functionary, whether or not the Corporation would have the power
to indemnify him or her against the liability under the Act or these Bylaws;
provided, however, that if the insurance or other arrangement is with a person
or entity that is not regularly engaged in the business of providing insurance
coverage, the insurance or arrangement may provide for payment of a liability
with respect to which the Corporation would not have the power to indemnify the
person only if including coverage for the additional liability has been approved
by the shareholders of the Corporation. Without limiting the power of the
Corporation to procure or maintain any kind of insurance or arrangement, the
Corporation may, for the benefit of persons indemnified by the Corporation, (i)
create a trust fund, (ii) establish any form of self-insurance, (iii) secure its
indemnification obligation by grant of any security interest or other lien on
the assets of the Corporation, or (iv) establish a letter of credit, guaranty or
surety arrangement. Any such insurance or other
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arrangement may be procured, maintained or established within the Corporation
or its affiliates or with any insurer or other person deemed appropriate by the
Board of Directors of the Corporation regardless of whether all or part of the
stock or other securities thereof are owned in whole or in part by the
Corporation. In the absence of fraud, the judgment of the Board of Directors of
the Corporation as to the terms and conditions of such insurance or other
arrangement and the identity of the insurer or other person participating in an
arrangement shall be conclusive, and the insurance or arrangement shall not be
voidable and shall not subject the directors approving the insurance or
arrangement to liability, on any ground, regardless of whether directors
participating in approving such insurance or other arrangement shall be
beneficiaries thereof.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Distributions and Share Dividends. Distributions or share
dividends to the shareholders of the Corporation, subject to the provisions of
the Act and the Articles of Incorporation and any agreements or obligations of
the Corporation, if any, may be declared by the Board of Directors at any
regular or special meeting. Distributions may be declared and paid in cash or in
property (other than shares or rights to acquire shares of the Corporation),
provided that all such declarations and payments of distributions, and all
declarations and issuances of share dividends, shall be in strict compliance
with all applicable laws and the Articles of Incorporation.
Section 2. Reserves. There may be created by resolution of the Board
of Directors out of the surplus of the Corporation such reserve or reserves as
the Board of Directors from time to time, in its discretion, deems proper to
provide for contingencies, or to equalize distributions or share dividends, or
to repair or maintain any property of the Corporation, or for such other proper
purpose as the Board shall deem beneficial to the Corporation, and the Board may
increase, decrease or abolish any reserve in the same manner in which it was
created.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 4. Seal. The Corporation shall have a seal which may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
manner reproduced. Any officer of the Corporation shall have authority to affix
the seal to any document requiring it.
Section 5. Resignation. Any director, officer or agent of the
Corporation may resign by giving written notice to the President or the
Secretary. The resignation shall take effect at the time specified therein, or
immediately if no time is specified therein. Unless specified in such notice,
the acceptance of such resignation shall not be necessary to make it effective.
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ARTICLE IX
AMENDMENTS TO BYLAWS
Unless otherwise provided by the Articles of Incorporation or a
bylaw adopted by the shareholders of the Corporation, these Bylaws may be
amended or repealed, or new Bylaws may be adopted, at any meeting of the
shareholders of the Corporation or of the Board of Directors at which a quorum
is present, by the affirmative vote of the holders of a majority of the shares
or the directors, as the case may be, present at such meeting.
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CERTIFICATION
I, Camille R. Comeau, Asst. Secretary of Spring Valley Scents, Inc.,
hereby certify that the foregoing is a true, accurate and complete copy of the
Bylaws of Spring Valley Scents, Inc. (the "Corporation"), adopted by the
Corporation's Board of Directors as of October 3, 1997.
/s/ CAMILLE R. COMEAU
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Asst. Secretary
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