EXHIBIT 3(b)
AMENDED AND RESTATED
BY-LAWS
OF
ENESCO GROUP, INC.
As Amended Through May 1, 1998
AMENDED AND RESTATED BY-LAWS OF ENESCO GROUP, INC.
TABLE OF CONTENTS
ARTICLE PAGE
I OFFICES.......................................................1
Sec. 1 Principal Office.......................................1
Sec. 2 Other Offices..........................................1
II MEETINGS OF STOCKHOLDERS......................................1
Sec. 1 Place of Meetings......................................1
Sec. 2 Quorum.................................................1
Sec. 3 Annual Meetings........................................1
Sec. 4 Special Meetings.......................................2
Sec. 5 Notices................................................2
Sec. 6 Adjournments...........................................2
III DIRECTORS.....................................................2
Sec. 1 Number and Term........................................2
Sec. 2 Annual Meetings........................................2
Sec. 3 Regular Meetings.......................................2
Sec. 4 Special Meetings.......................................3
Sec. 5 Waiver of Notice.......................................3
Sec. 6 Quorum.................................................3
Sec. 7 Action without Meeting.................................3
Sec. 8 Powers.................................................3
Sec. 9 Execution of Corporation Documents and Instruments.....3
Sec. 10 Committees of the Board of Directors..................4
Sec. 11 Remuneration of Outside Directors.....................4
IV OFFICERS......................................................4
Sec. 1 Election of Officers...................................4
Sec. 2 Terms of Office........................................4
Sec. 3 Compensation of Officers, Employees and Agents.........5
Sec. 4 Vacancies..............................................5
CHAIRMAN OF THE BOARD
Sec. 5........................................................5
Sec. 6........................................................5
PRESIDENT
Sec. 7........................................................5
Sec. 8........................................................5
VICE-PRESIDENTS
Sec. 9........................................................6
TREASURER
Sec. 10.......................................................6
Sec. 11.......................................................6
Sec. 12.......................................................6
Sec. 13.......................................................6
ASSISTANT TREASURERS
Sec. 14.......................................................7
SECRETARY
Sec. 15.......................................................7
ASSISTANT SECRETARIES
Sec. 16.......................................................7
CLERK
Sec. 17.......................................................7
ASSISTANT CLERKS
Sec. 18.......................................................8
BONDS
Sec. 19.......................................................8
V INDEMNIFICATION OF OFFICERS AND DIRECTORS.....................8
VI STOCK.........................................................9
Sec. 1 Holders to be Recognized...............................9
Sec. 2 Form of Stock Certificates.............................9
Sec. 3 Replacement of Certificates Lost, Etc..................9
Sec. 4 Fixing Date for Determination of Stockholders
of Record...........................................10
Sec. 5 Restrictions on Transfer..............................10
Sec. 6 Massachusetts Control Share Acquisition Act...........10
VII SEAL AND FISCAL YEAR.........................................10
Sec. 1 Seal..................................................10
Sec. 2 Fiscal Year...........................................11
VIII AMENDMENT OF BY-LAWS.........................................11
Sec. 1.......................................................11
Sec. 2.......................................................11
AMENDED AND RESTATED BY-LAWS OF
ENESCO GROUP, INC.
ARTICLE I
OFFICES
Sec. 1. Principal Office. The location of the principal office of the
Corporation in the Commonwealth of Massachusetts shall be in the City of
Westfield, unless such location shall at any time be changed as permitted
by law.
Sec. 2. Other Offices. The Corporation may also have offices in such other
places within and without the Commonwealth of Massachusetts as the business
of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Sec. 1. Place of Meetings. Meetings of the stockholders of the Corporation
shall be held anywhere within the United States, as determined by the Board
of Directors of the Corporation, as permitted by the provisions of the
Massachusetts Business Corporation Law.
Sec. 2. Quorum. A majority of the stock issued, outstanding and entitled to
vote on the matters to be presented, which is represented by the holders
thereof, either in person or by proxy, shall be a quorum at any meeting of
stockholders.
Sec. 3. Annual Meetings. The annual meeting of the stockholders shall be
held on the fourth Thursday of April in each year at 10:00 A.M. unless by
order of the Board of Directors the notice of the annual meeting shall
designate some other hour on such date. At each annual meeting the
stockholders entitled to vote thereat on the matter shall elect the class
of Directors whose term of office is expiring, in accordance with the
provisions of Article 6B of the Restated Articles of Organization of the
Corporation, as amended. At each annual meeting the stockholders entitled
to vote thereat on the matter shall have placed before them for
ratification the name of the Auditor appointed by the Board of Directors in
accordance with law.
Sec. 4. Special Meetings. Special meetings of stockholders may be called by
the President, or by the Directors, or in any other manner specifically
authorized by law; provided, however, that if one or more stockholders
request the special meeting, the holders of at least ninety percent in
interest of the capital stock entitled to vote at the meeting must submit
written application therefor.
Sec. 5. Notices. Notice of any meeting of stockholders shall, at least
seven days prior to the date thereof, be mailed by the Clerk or an
Assistant Clerk or delivered by either to each stockholder entitled to vote
on any of the matters to be presented at his address as the same appears on
the stock records of the Corporation or so mailed or delivered to his
residence or to his usual place of business.
Sec. 6. Adjournments. Any meeting of the stockholders may be adjourned to
any other time and place by the stockholders present or represented by
proxy at the meeting and entitled to vote on the matters to be presented,
although less than a quorum, and it shall not be necessary to notify any
stockholder of any such adjournment. Any business which could have been
transacted at any meeting of stockholders as originally called may be
transacted at any such adjournment thereof.
ARTICLE III
DIRECTORS
Sec. 1. The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors as set forth in Article 6B of
the Restated Articles of Organization of the Corporation, as amended. Each
Director shall be a voting stockholder or shall become such prior to acting
as a director.
Sec. 2. Annual Meetings. Following each annual meeting of stockholders and
at the place thereof, if a quorum of the Board of Directors is present
thereat, the annual meeting of the Board of Directors shall proceed
thereafter without notice; but if a quorum of the Board is not present
thereat, or, if present, does not so proceed to hold such meeting, the
annual meeting of such Board shall be called in the manner hereinafter
provided with respect to the call of a special meeting of the Board.
Sec. 3. Regular Meetings. Regular meetings of the Board of Directors may be
held at such times and places within or without the Commonwealth of
Massachusetts as shall from time to time be fixed by the Board, and no
notice need be given of regular meetings held at times and places so fixed.
Sec. 4. Special Meetings. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board or the President, and the
Secretary or an Assistant Secretary shall give notice of any special
meeting so called to all Directors stating the time and place within or
without the Commonwealth of Massachusetts, and such notice shall be
sufficient if given either (i) by mailing the same postage prepaid
forty-eight hours before the date of the meeting addressed to each Director
at his usual place of business or residence, or (ii) by delivery thereof in
hand or by telegram dispatched prepaid not less than twenty-four hours
before the date of the meeting, or (iii) orally or by telephone not less
than twenty-four hours before the date of the meeting.
Sec. 5. Waiver of Notice. Any requirement of notice of any meeting of the
Board of Directors shall be deemed satisfied as to any Director who waives
the same or whose attendance at such meeting constitutes a waiver under the
law.
Sec. 6. Quorum. A majority of the Board of Directors in office shall
constitute a quorum for the transaction of business, and a meeting of the
Board, whether a quorum be present or not, may be adjourned by those
present without the necessity of notifying any Director of any such
adjournment. Any business which could legally be transacted at any meeting
of the Board of Directors may be transacted at any adjournment thereof
without any new notification.
Sec. 7. Action without Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a
meeting if all Directors consent in writing to such action. Such written
consent shall be filed with the minutes of the Board of Directors.
Sec. 8. Powers. The Board of Directors shall manage the business of the
Corporation and shall have all the powers of the Corporation, except such
as by law, the Articles of Organization or by the By-Laws of the
Corporation are conferred upon or reserved to the stockholders.
Sec. 9. Execution of Corporation Documents and Instruments. The Board of
Directors shall designate the persons, in addition to those specifically
authorized elsewhere in these By-Laws, who shall be empowered on behalf of
the Corporation to sign checks, contracts, bids, deeds, releases,
securities devices, notes and other documents and instruments of the
Corporation, as well as the terms and conditions, if any, of such signing.
Sec. 10. Committees of the Board of Directors. The Board of Directors may
establish such committees, including an Executive Committee, consisting of
members elected by it from among its number as it deems advisable in the
conduct of the business of the Corporation and may delegate such functions
and duties to such committees from time to time as may be permitted by law.
Sec. 11. Remuneration of Outside Directors. Any Director who is entitled to
compensation from the Corporation as an officer or employee thereof shall
not receive any additional compensation for his services as a director. The
Board of Directors may provide for remuneration of all other Directors in
such amounts and in such manner as the Board may from time to time deem
advisable.
ARTICLE IV
OFFICERS
Sec. 1. Election of Officers. The Officers of the Corpora- tion shall be
elected by the Directors and shall include a President, a Treasurer, and a
Clerk, and, when deemed desirable by the Board of Directors, a Chairman of
the Board, one or more Vice-Presidents, one or more Assistant Treasurers, a
Secretary and one or more Assistant Secretaries, one or more Assistant
Clerks and such other officers as the Board of Directors may, from time to
time, deem necessary or advisable for the management of the affairs of the
Corporation. The President, Treasurer and Clerk shall be elected at the
Annual Meeting of Directors. All other officers may be elected at such
annual meeting or at any regular or special meeting of the Board of
Directors.
Sec. 2. Terms of Office. The President, the Treasurer and the Clerk shall
(unless sooner removed in accordance with law) holder office until the next
annual meeting of the Board of Directors and until their respective
successors are elected. All other officers shall (unless sooner removed in
accordance with law) hold their respective offices until the next annual
meeting and the election of the first mentioned officers thereat.
Sec. 3. Compensation of Officers, Employees and Agents. The officers,
employees and agents of the Corporation shall receive such compensation and
upon such terms as the Board of Directors may from time to time determine.
The determination of such compensation may be delegated by the Board of
Directors to (i) a Compensation Committee composed of members of the Board
who are elected to that Committee by it or appointed under is authorization
except that the determination of the compensation of the members of the
Compensation Committee cannot be delegated to that Committee, and (ii) to
such other individuals or committees to the extent and in the manner
permitted by the law.
Sec. 4. Vacancies. If any corporate office specified in this Article
becomes vacant for any reason, including resignation, the Board of
Directors may elect a successor who shall hold office for the unexpired
term unless sooner removed in accordance with law.
CHAIRMAN OF THE BOARD
Sec. 5. The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors.
Sec. 6. The Chairman of the Board shall have the power, on behalf of the
Corporation, to sign contracts, deeds and releases and, with the Treasurer
or Assistant Treasurer, to sign or endorse security devices, notes, and,
when authorized by the Board of Directors, to sign or endorse such other
documents and instruments as the Board of directors may specify. The
Chairman of the Board shall also have such additional powers and duties as
the Board of Directors may from time to time assign him.
PRESIDENT
Sec. 7. In the absence or disability of the Chairman of the Board or at his
request, or if his office be vacant, the President shall preside at all
meetings of the stockholders and of the Board of Directors.
Sec. 8. The President shall have the power on behalf of the Corporation (i)
to sign contracts, deeds and releases and (ii) with the Treasurer or
Assistant Treasurer, to sign or endorse certificates of stock, security
devices, notes, and (iii) when authorized by the Board of Directors, to
sign or endorse such other documents and instruments as the Board of
Directors may specify. The President shall have also such additional powers
and duties as the Board of Directors may from time to time assign to him.
VICE PRESIDENTS
Sec. 9. Each of the Vice-Presidents shall bear such title and shall have
such powers and duties as may be assigned to him from time to time by the
Board of Directors.
TREASURER
Sec. 10. The Treasurer shall have the custody of the money, funds and
securities of the Corporation and shall have charge of its books and
keeping of its accounts. He shall make financial and accounting reports to
the Board of Directors at least quarterly and more often when requested by
it, and shall make a report at the annual meeting of stockholders. He shall
keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all monies and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated from time to time by the Board of
Directors.
Sec. 11. The Treasurer shall, with the President or a duly authorized
Vice-President, sign all certificates of stock, and with the Chairman of
the Board or the President or a duly authorized Vice-President, sign or
endorse security devices and notes and, when authorized by the Board of
Directors, sign or endorse such other documents and instruments as the
Board may specify.
Sec. 12. The Treasurer shall also keep books for the recording of stock and
transfers thereof and the names and addresses of stockholders and shall be
transfer agent of the Corporation for the transfer of all certificates of
stock; provided that the Board of Directors may, with respect to the
transfer of shares of any class of the capital stock of the Corporation,
appoint any other person or corporation to act as transfer agent, and, when
the Board deems it desirable, any person or corporation to act as registrar
thereof.
Sec. 13. The Treasurer also shall have such additional powers and duties as
may be assigned to him from time to time by the Board of Directors.
ASSISTANT TREASURERS
Sec. 14. In the absence or disability of the Treasurer, or if his office be
vacant, the Assistant Treasurers, in the order of the seniority of their
election, shall have the powers and duties appertaining to the office of
Treasurer set forth in Sections 10 and 12 above and when duly authorized by
the Board of Directors shall perform all or any part of the duties set
forth in Sections 11 and 13 above. In addition to the foregoing, each of
the Assistant Treasurers shall have such other powers and duties as may be
assigned to him from time to time by the Board of Directors.
SECRETARY
Sec. 15. The Secretary shall attend all meetings of the Board of Directors
and the Executive Committee and shall record all votes and minutes of all
proceedings thereat in books to be kept for that purpose. When required by
law or these By-Laws, proper notice of meetings of the Board of Directors
shall be given by him. In addition to the foregoing, the Secretary shall
have such other powers and duties as may be assigned to him from time to
time by the Board of Directors.
ASSISTANT SECRETARIES
Sec. 16. In the absence or disability of the Secretary or at his request,
or if his office be vacant, the Assistant Secretaries, in the order of the
seniority of their elections, shall perform the duties herein assigned to
the Secretary. In addition to the foregoing, each Assistant Secretary shall
have such other powers and duties as may be assigned to him from time to
time by the Board of Directors.
CLERK
Sec. 17. The Clerk shall be a resident of the Commonwealth of Massachusetts
unless the Board of Directors shall appoint a Resident Agent as permitted
by law. He shall attend all meetings of stockholders and act as clerk
thereof and shall record all votes and minutes of all proceedings thereat
in books to be kept for that purpose. Such books shall be kept as provided
by law. When required by law or these By-Laws, proper notice shall be given
by him of all meetings of stockholders. In addition to the foregoing, the
Clerk shall have such other powers and duties as may be assigned to him
from time to time by the Board of Directors.
ASSISTANT CLERKS
Sec. 18. In the absence or disability of the Clerk or at his request, or if
his office be vacant, the Assistant Clerks, in the order of the seniority
of their election, shall perform the duties herein assigned to the Clerk.
In addition to the foregoing, each Assistant Clerk shall have such other
powers and duties as may be assigned to him from time to time by the Board
of Directors.
BONDS
Sec. 19. Any officer of the Corporation may be required to give a bond for
the faithful performance of his duties in such form and with such sureties
as the Board of Directors may direct.
ARTICLE V
INDEMNIFICATION
In order to induce directors, officers, employees and other agents
of the Corporation to serve as such and as partial consideration for such
service, the Corporation shall, to the fullest extent and under the
circumstances permitted by Massachusetts law, as amended from time to time,
indemnify any person serving or who has served as a director or officer of
the Corporation or a President or Vice President of any division of the
Corporation or any person serving or who has served at the Corporation's
request (1) as director or officer of a direct or indirect subsidiary of
the Corporation or another organization or (2) in any capacity with respect
to any employee benefit plan of the Corporation, and the Board of Directors
may, to the extent legally permissible, indemnify any person serving or who
has served as an employee or other agent of the Corporation or as an
employee or other agent or in any capacity with respect to any employee
benefit plan of a direct or indirect subsidiary of the Corporation or
another organization, against all liabilities and expenses, including
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and counsel fees, reasonably incurred by him or her in
connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, in which he or she may be involved
or with which he or she may be threatened, while serving or thereafter, by
reason of his or her being or having been such a director, officer,
trustee, partner, person serving with respect to an employee benefit plan,
employee or agent, except (unless other- wise permitted by Massachusetts
law) with respect to any matter as to which he or she shall have been
adjudicated in any proceeding not have acted in good faith in the
reasonable belief that his or her action was in the best interest of the
Corporation or, to the extent such matter relates to service with respect
to an employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan. Expenses, including without
limitation counsel fees, reasonably incurred by any such director, officer,
person serving with respect to any employee benefit plan, employee or agent
in connection with the defense or disposition of any such action, suit or
other proceeding may be paid from time to time by the Corporation in
advance of the final disposition thereof upon receipt of an undertaking by
such individual to repay the amounts so paid to the Corporation if it shall
be adjudicated that indemnification for such expenses is not authorized
under this Article. The right of indemnification hereby provided shall not
be exclusive of or affect any other rights to which any such director,
officer, person serving with respect to any employee benefit plan, employee
or agent may be entitled. Nothing contained in this Article shall affect
any other rights to indemnification to which such directors, officers,
persons serving with respect to an employee benefit plan, employees or
agents may be entitled by contract or otherwise under law. The Board of
Directors is authorized to enter into agreements regarding indemnification
which are not inconsistent with the provisions of this Article.
ARTICLE VI
STOCK
Sec. 1. Holders to be Recognized. The Corporation shall be entitled to
treat the record holder of any share or shares of stock as the holder in
fact thereof and 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 except as may be otherwise expressly provided by law.
Sec. 2. Form of Stock Certificates. All certificates of stock shall be in
such form and contain such information as shall be required by law and be
signed, either manually or by facsimile, as hereinbefore provided.
Sec. 3. Replacement of Certificates Lost, Etc. In case of the alleged loss,
destruction, mutilation, or wrongful taking of a certificate of stock, a
new certificate may be issued in place thereof, upon such terms and
conditions as the Board of Directors may prescribe.
Sec. 4. Fixing Date for Determination of Stockholders of Record. The Board
of Directors may fix in advance a time, which shall be not more than sixty
days before the date of any meeting of stockholders or the date for the
payment of any dividend or the making of any distribution to stockholders
or the last day on which the consent or dissent of stockholders may be
effectively expressed for any purpose, as the record date for determining
the stockholders having the right to notice of and to vote at such meeting
and any adjournment thereof or the right to receive such dividend or
distribution or the right to give such consent or dissent, and in such case
only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Corporation after
the record date; or without fixing such record date the Board of Directors
may for any of such purposes close the transfer books for all or any part
of such period.
Sec. 5. Restrictions on Transfer. The Board of Directors may impose
restrictions on transfer of securities of the Corporation pursuant to the
Rights Agreement dated as of September 7, 1988 by and between the
Corporation and The Connecticut Bank and Trust Company, N.A. (East
Hartford, Connecticut), as and to the extent required by such Rights
Agreement, as amended from time to time.
Sec. 6. Massachusetts Control Share Acquisition Act. Until such time as
this Section 6, Article VI shall be repealed or the By-Laws otherwise shall
be amended to provide otherwise, in each case in accordance with Article
VIII of the By-Laws, the provisions of Chapter 110D of the Massachusetts
General Laws ("Chapter 110D") shall not apply to "control share
acquisitions" of the Corporation within the meaning of Chapter 110D.
ARTICLE VII
SEAL AND FISCAL YEAR
Sec. 1. Seal. The seal of the Corporation shall have inscribed thereon the
name of the Corporation and the words "INCORPORATED 1931 MASSACHUSETTS".
The corporate seal may be used by causing it or a facsimile thereof to be
impressed or affixed to any document.
Sec. 2. Fiscal Year. The fiscal year of the Corporation shall begin on the
first day of January of each year and end on the thirty-first day of
December.
ARTICLE VIII
AMENDMENT OF BY-LAWS
Sec. 1. Any of these By-Laws may be added to, altered, amended or repealed
by the stockholders of the Corporation entitled to vote on the matter at
any annual or special meeting of stockholders. The nature or substance of
the proposed addition, alteration, amendment or repeal shall be stated in
the notice of the meeting.
Sec. 2. The Board of Directors shall also have the power to make, amend or
repeal the By-Laws of the Corporation in whole or in part subject to
amendment or repeal by stockholders as provided by law.