Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 104 562K
2: EX-3.1 Restated Articles of Incorporation 6 14K
3: EX-3.2 Articles of Amend. to Restated Articles 4 8K
4: EX-3.3 By-Laws of Sun Apparel, Inc. 11 21K
5: EX-21.1 List of Subsidiaries 1 4K
6: EX-23.1 Consent of Ernst & Young LLP 1 5K
EX-3.3 — By-Laws of Sun Apparel, Inc.
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Exhibit 3.3
BY-LAWS OF
SUN APPAREL, INC.
ARTICLE I
NAME
SECTION 1. The name of this corporation is Sun Apparel, Inc.
LOCATION
SECTION 2. The location of its principal office and place of
business shall be 11201 Armour Drive, El Paso, Texas 79935.
SECTION 3. The Corporation shall not have a corporate seal.
ARTICLE II
SHARES AND SHAREHOLDERS
SECTION 1. A statement of the aggregate number of shares which
this Corporation shall have authority to issue, the classes of such shares and
the par value of each of such shares, is stated in its Articles of
Incorporation, and reference is made thereto for all purposes.
SECTION 2. The shareholders of this Corporation shall be those who
appear on the books of the Corporation as the holders of one or more shares, or
fractional shares, of the stock of this Corporation, for the purpose of
determining the owners thereof for voting purposes and for the purpose of
payment of dividends.
SECTION 3. All transfers of the shares of this Corporation shall
be made in accordance with the provisions of Chapter 8 -- Investment Securities
-- of the Texas Business and Commerce Code. Certificates of shares shall be
surrendered and canceled at the time of transfer. No transfer of shares shall
be made within three days next preceding the date appointed for paying
dividends.
SECTION 4. In case of loss or destruction of a certificate of
shares, another may be issued in its place upon proof of such loss or
destruction, and the giving of a satisfactory bond of indemnity if so required
by the Board of directors.
SECTION 5. All certificates of shares of the Corporation, when
issued, shall be signed by the President or Vice President, and by the Secretary
or an Assistant Secretary.
A. Each certificate representing shares shall state upon the face
thereof:
(1) That the Corporation is organized under the laws of the State of
Texas;
(2) The name of the person to whom it is issued;
(3) The number and class of shares and designation of the series, if
any, which such certificates represent; and
(4) The par value of each share represented by such certificates, or
a statement that such shares are without par value.
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B. In the event any restriction on the transfer, or registration of
the transfer, of shares shall be imposed or agreed to by the Corporation, as
permitted by this Act, each certificate representing shares so restricted (1)
shall conspicuously set forth a full or summary statement of the restriction on
the face of the certificate, or (2) shall set forth such statement on the back
of the certificate and conspicuously refer to the same on the face of the
certificate, or (3) shall conspicuously state on the face or back of the
certificate that such a restriction exists pursuant to a specified document and
(a) that the corporation will furnish to the record holder of the certificate
without charge upon written request to the corporation at its principal place of
business or registered office a copy of the specified document, or (b) if such
document is one required or permitted to be and has been filed under this Act,
that such specified document is on file in the office of the Secretary of State
and contains a full statement of such restriction.
No certificate shall be issued for any share until the consideration
therefor fixed, as provided by law, has been fully paid.
SECTION 6. Subscriptions for shares shall be paid for in full at
such time or in such installments and at such times as shall be determined by
the Board of Directors. In case of default in the payments of any installment
or call when such payment is due, the corporation may proceed to collect the
amount due in the same manner as any debt due to the Corporation. The Board of
Directors shall have the right to provide that failure to pay installments or
calls shall work a forfeiture of a subscrip-
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tion and all amounts paid thereon. Provided, however, no forfeiture of a
subscription shall be declared unless the amount due thereon shall remain unpaid
for a period of twenty (20) days after written demand has been made therefor.
ARTICLE III
SHAREHOLDERS MEETING
SECTION 1. The regular annual meeting of the Shareholders shall be
held at the registered office of the Corporation in El Paso, Texas, or at such
other place and at such date and time as the Board of Directors may determine.
SECTION 2. Special meetings of the Shareholders may be called by
the Chairman, the President, the Board of Directors, or the holders of not less
than ten percent (10%) of all the shares entitled to vote at the meeting.
SECTION 3. Written or printed notice stating the place, day and
hour of the meeting and, in case of a special meeting, the purpose or purposes
for which the meeting is called, shall be delivered to each Shareholder not less
than ten (10) nor more than fifty (50) days before the date of the meeting,
either personally or by mail, by or at the direction of the President, the
Secretary, or the officer or person calling the meeting. Notice may be waived
in writing before or after the time stated therein.
SECTION 4. Each meeting of the Shareholders shall be presided over
by the President of the Corporation, if present, or in his absence, by the
Chairman, or by a Vice President, or in the absence of all of the above, it
shall be organized by the
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election of a chairman of the meeting, and the Secretary or an Assistant
Secretary of the Corporation shall attend such meeting of the Shareholders and
act as secretary thereof or the chairman of the meeting may at his discretion
appoint a secretary of the meeting. The quorum for a meeting of the
Shareholders shall consist of a simple majority of the shares entitled to vote,
represented in person or by proxy. The vote of the holders of a majority of the
shares entitled to vote and be represented at a meeting at which a quorum is
present shall be the act of the Shareholders' meeting.
SECTION 5. Any action required to be taken, or which may be taken,
at the meeting of the Shareholders, may be taken without a meeting, or by a
telephonic meeting, 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
subject matter thereof, and such consent shall have the same force and effect as
a unanimous vote of the Shareholders.
SECTION 6. All proxies shall be executed in writing by the
shareholder or by his duly authorized attorney-in-fact. No proxy shall be valid
after eleven (11) months from the date of its execution unless otherwise
provided in the proxy. All proxies shall be filed with the secretary of the
meeting before being voted upon.
SECTION 7. Except as otherwise provided by the Articles of
Incorporation or the Texas Business Corporation Act, each outstanding share
shall be entitled to vote on each matter submitted to a vote at a meeting of
shareholders.
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ARTICLE IV
DIRECTORS
SECTION 1. The Directors of this Corporation shall have the
general management of the business and affairs of the Corporation.
SECTION 2. The number of Directors of the Corporation shall be not
less than one but not more than ten.
SECTION 3. A majority of the Directors qualified and acting shall
constitute a quorum. The act of the majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
SECTION 4. Each Director shall serve from his election until the
next succeeding annual meeting of the Shareholders and until his successor shall
have been duly elected and qualified, unless sooner removed pursuant to these
By-Laws.
SECTION 5. Within a reasonable time after the election of each new
Board of Directors, such newly elected Directors shall convene in meeting for
the purpose of election of officers, and for the purpose of conducting such
other business as may be desired by those present at the meeting. Such meeting
of the Directors shall be a general meeting of the Board of Directors and any
business of the Corporation may be transacted thereat.
SECTION 6. The Board of Directors of this Corporation may hold
special meetings at any time and at any place by unanimous consent. The
Chairman or
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the President of the Corporation or any two (2) of qualified and acting
Directors may call a special meeting of the Board of Directors to be held at any
time and at any place. Notice of such special meetings so called shall be given
by the Secretary or an Assistant Secretary or by the President or Chairman in
either or by a combination of the following methods, to wit:
(a) Actual notice in person or by telephone to each Director at least
one day in advance of the date set for the meeting.
(b) Notice by mail or telegraph sent to each Director in time in
regular course of business to reach each respective Director at least one
(1) day prior to the date set for such meeting. In case of written or
telegraphic notices, the same shall be sufficient if sent charges prepaid
to the last address known to the Secretary as shown by the records of the
Corporation of each respective Director.
(c) Notice of any particular meeting may be given to a part of the
Directors in one manner and to the remaining Directors in a different
manner. Notice may be waived in writing before or after the time stated
therein.
SECTION 7. Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of a majority of the remaining Directors through
less than a quorum of the Board of Directors, unless otherwise provided by law.
A Director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office.
SECTION 8. Any Director elected by the Shareholders, or elected by
the Board of Directors to fill a vacancy, may be removed by the Shareholders,
and such removal shall be in the sole discretion of the shareholders whenever in
their judgment
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the best interests of the Corporation shall be served thereby, and in addition,
such removal may be without cause.
SECTION 9. The President of the Corporation shall act as chairman
of all meetings of the Board of Directors and in his absence by the Chairman, or
those present at the meeting of the Board of Directors shall organize by the
election of a chairman pro tem. The Secretary of the Corporation shall attend
all meetings of the Board of Directors. In his absence, an Assistant Secretary
may act as Secretary thereof or the President or Chairman may at any time
appoint any person including himself to act as secretary of the meeting.
SECTION 10. Any action required or permitted to be taken at a
meeting of the Board of Directors may be taken if a consent in writing setting
forth the action so taken shall be signed by all of the members of the Board of
Directors, and such consent shall have the same force and effect as a unanimous
vote at a meeting of the Directors.
ARTICLE V
OFFICERS AND THEIR DUTIES
SECTION 1. The officers of the Corporation shall be a Chairman, a
President, a Vice President, a Secretary and a Treasurer and such other officers
as the Board of Directors shall consider necessary or proper for the management
of the Corporation's affairs. Any two (2) or more offices may be held by the
same person.
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SECTION 2. The term of the of fice of each officer shall be one
year from his election, but each officer shall serve until his successor shall
have been duly elected, unless sooner removed by the Board of Directors.
SECTION 3. Each new Board of Directors, at its first meeting,
shall choose and elect also the officers of the Corporation for the ensuing year
and until their successors are elected. It shall not be necessary for any of
the officers to be members of the Board of Directors.
SECTION 4. Each officer of the Corporation shall have all of the
rights, powers, and duties and privileges usually incident to his respective
office in an ordinary corporation for profit.
ARTICLE VI
BOOKS, RECORDS, CHECKS, DRAFTS
SECTION 1. The general books, records and share certificate books
of this corporation shall be kept at its registered Office.
SECTION 2. Any person who shall have been a Shareholder of record
for at least six (6) months immediately preceding his demand, or who shall be
the holder of record of at least twenty percent (20%) of all of the outstanding
shares of the Corporation, upon written demand stating the purpose thereof,
shall have a right to examine, in person or by agent or attorney, at any
reasonable time or times, for any
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proper purpose, the Corporation's books, records, minutes and record of
Shareholders and shall be entitled to make extracts therefrom.
ARTICLE VII
OPERATION AS S CORPORATION
SECTION 1. It is the policy and intention of this Corporation that
all distributions and dividends declared or distributed or deemed to have been
declared or distributed, whether by express declaration, by operation of law, as
the result of audit by the Internal Revenue Service or otherwise shall be
distributed among the Shareholders of this Corporation in the proportions that
the numbers of shares of stock of the Corporation each of them holds bears to
the total number of shares of stock of the Corporation outstanding. To
implement such policy and intent, it is hereby affirmed that all Shareholders of
the Corporation are entitled to all dividends and distributions, whether
expressly declared or deemed to have been declared, and all distributions
thereof, in the proportions that the number of shares each of them holds bears
to the total number of shares of stock of the Corporation outstanding at the
time of the declaration of such dividend or at the time such dividend or
distribution is deemed to have been declared. To the extent any Shareholder
shall receive a distribution or dividend, whether expressly declared or deemed
to have been declared, by operation of law, as the result of audit by the
Internal Revenue Service or otherwise, which shall be in excess of the amount he
shall be entitled to hereunder, he shall hold such excess amount in trust for
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those other Shareholders who shall be entitled thereto in accordance with the
provisions hereof, and upon demand by any of them or by the corporation, shall
pay over such excess amount to the Shareholders entitled thereto, together with
interest at the applicable federal rate, determined in accordance with Section
1274 (d) (1) of the Internal Revenue Code of 1986, for the period from the date
the paying Shareholder shall have received or shall be deemed to have received
such excess amount until the date of payment. The Corporation shall not declare
or distribute or be deemed to have declared or distributed any dividends or
distributions inconsistent with provisions hereof.
ARTICLE VII
AMENDMENTS
SECTION 1. These By-Laws may be amended at any time and from time to
time as authorized by the laws of the State of Texas.
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