AMENDED AS OF
NOVEMBER 7, 2000
BY-LAWS
of
COMDISCO, INC.
ARTICLE I.
Stockholders
Section 1. Annual Meeting. Unless Directors are elected by written
consent in lieu of an annual meeting, an annual meeting of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Board of
Directors, for the purpose of electing Directors and for the transaction of such
other business as properly may be brought before the meeting. Stockholders may,
unless the certificate of incorporation otherwise provides, act by written
consent to elect directors, provided, however, that if such consent is less than
unanimous, such action by written consent may be in lieu of holding an annual
meeting only if all of the directorships to which directors could be elected at
an annual meeting held at the effective time of such action are vacant and are
filled by such action.
Section 2. Special Meetings. Special meetings of the stockholders for
any proper purpose or purposes may be called by the Board of Directors, the
Chairman of the Board, Chief Executive Officer or the President. Any special
meeting shall be held on such date, at such time and at such place within or
without the State of Delaware as the Board of Directors or the officer calling
the meeting may designate. Only such business shall be conducted at a special
meeting as shall have been stated in the notice of the meeting as the purpose or
purposes for the meeting.
Section 3. Place of Meetings. The Directors may, in their sole
discretion, determine that the Annual or any Special Meeting shall not be held
at any place, but may instead be held solely by means of remote communication as
authorized by Section 211 of the General Corporation Law of Delaware. If
authorized by the Directors in their sole discretion, and subject to such
guidelines and procedures as the Directors may adopt, stockholders and
proxyholders not physically present at a meeting of stockholders may, by means
of remote communication: (a) participate in a meeting of stockholders; and (b)
be deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication, provided that (i) the Corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxyholder, (ii)
the Corporation shall implement reasonable measures to provide such stockholders
and proxyholders a reasonable opportunity to participate in the meeting and to
vote on matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with such
proceedings, and (iii) if any stockholder or proxyholder votes or takes other
action at the meeting by means of remote communication, a record of such vote or
other action shall be maintained by the Corporation.
Section 4. Notice and Adjournment of Meetings. The Secretary shall give
written notice of each meeting of the stockholders to the stockholders of record
entitled to vote thereat not less than ten nor more than sixty days before the
meeting, directed to each such stockholder at his address as it appears on the
records of the Corporation and stating the date, time and place, if any, of the
meeting, the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meetings
and, in the case of a special meeting, the purpose or purposes for which such
meeting is called. Except when a stockholder attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business on the grounds that the meeting is not lawfully called or convened,
presence in person or by proxy of a stockholder shall constitute a waiver of
notice of such meeting. Further, a written waiver of any notice required by law
or these By-Laws, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent notice. Any previously
scheduled meeting of the stockholders may be postponed, and (unless the
Certificate of Incorporation otherwise provides) any special meeting of the
stockholders may be canceled, by resolution of the Board of Directors, upon
public announcement made prior to the date previously scheduled for such meeting
of stockholders.
The Chairman of the meeting or the holders of a majority of the shares
entitled to vote, present in person or by proxy, may adjourn the meeting from
time to time, whether or not there is then a quorum present. When a meeting of
stockholders is adjourned to another date, time or place, notice need not be
given of the adjourned meeting if the date, time, place, if any, thereof, and
the means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such adjourned
meetings are announced at the meeting at which the adjournment is taken;
provided, however, that if the adjournment is for more than thirty days or if,
after the adjournment, a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. At the adjourned meeting any business may be
transacted which may have been transacted at the original meeting.
Section 5. Quorum. At any meeting of the stockholders, the holders of a
majority of all the shares of the capital stock of the Corporation issued and
outstanding and entitled to vote, present in person or represented by proxy,
shall constitute a quorum of the stockholders for all purposes, unless the
representation of a larger number shall be required by law, by the Certificate
of Incorporation or by these By-Laws for the purpose of a quorum, and in that
case the representation of the number so required shall constitute a quorum.
Section 6. Qualifications to Vote. The stockholders of record on the
books of the Corporation at the close of business on the record date as
determined in accordance with these By-Laws and only such stockholders shall be
entitled to vote at any meeting of stockholders or any adjournment thereof.
It shall be the duty of the Secretary, or at his direction an Assistant
Secretary, to prepare and make at least ten days before every meeting of
stockholders a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Nothing contained in this Section shall require the Corporation to include
electronic mail addresses or other electronic contact information on such list.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of at least 10 days prior to the meeting:
(i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting,
or (ii) during ordinary business hours, at the principal place of business of
the Corporation. In the event that the Corporation determines to make the list
available on an electronic network, the Corporation may take reasonable steps to
ensure that such information is available only to stockholders of the
Corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting
is to be held solely by means of remote communication, then the list shall also
be open to the examination of any stockholder during the whole time of the
meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the meeting.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary, business hours, for a period of at
least ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 7. Organization. The Chairman of the Board or, in his absence,
the Chief Executive Officer or the President shall call meetings of the
stockholders to order and shall act as Chairman of such meetings. In the absence
of the Chairman of the Board, the Chief Executive Officer or the President, the
Board of Directors may appoint an officer of the Corporation to perform these
duties.
The Secretary of the Corporation shall act as Secretary of all meetings
of the stockholders; but in the absence of the Secretary at any meeting of
stockholders, the Chairman may appoint any person to act as Secretary of the
meeting.
Section 8. Voting. Subject to the provisions of the Certificate of
Incorporation or of law, every stockholder shall be entitled to one vote in
person or by proxy for each share of the capital stock registered in the name of
such stockholder upon the books of the Corporation, but no proxy shall be voted
on after three years from its date, unless said proxy provides for a longer
period. The vote for Directors and, upon the demand of any stockholder, the vote
upon any matter before the meeting, shall be by written ballot, and except as
otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws, all elections shall be decided by a plurality vote. If authorized by
the Directors, such requirement of a written ballot shall be satisfied by a
ballot submitted by electronic transmission, provided that any such electronic
transmission must either set forth or be submitted with information from which
it can be determined that the electronic transmission was authorized by the
stockholder or proxyholder. All other matters brought before any meeting at
which a quorum is present shall be decided by the vote of the holders of a
majority of stock having voting power present in person or by proxy, unless the
question is one upon which by express provision of the statutes, these By-Laws
or of the Certificate of Incorporation (including Articles 11 and 12 thereof), a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
Section 9. Authorization of Proxies. Without limiting the manner in
which a stockholder may authorize another person or persons to act for him as
proxy, the following are valid means of granting such authority. A stockholder
may execute a writing authorizing another person or persons to act for him as
proxy. Execution may be accomplished by the stockholder or his authorized
officer, director, employee or agent signing such writing or causing his or her
signature to be affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature. A stockholder may also authorize another
person or persons to act for him as proxy by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic transmission
to the person who will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such transmission,
provided that any such telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. If it is determined that such
telegrams, cablegrams of other electronic transmissions are valid, the
inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information upon which they relied. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this section may be substituted or used in lieu
of the original writing or transmission for any and all purposes for which the
writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be complete reproduction of the
entire original writing or transmission.
Section 10. Inspectors. At each meeting of the stockholders, the polls
shall be opened and closed, the proxies and ballots shall be received and be
taken in charge, and all questions relating to the qualifications of voters, the
validity of proxies and the acceptance or rejection of votes shall be decided by
one or more Inspectors. Such Inspectors shall be appointed by the Board of
Directors before the meeting or, if no such appointment shall have been made,
then by the presiding officer at the meeting. If, for any reason, any of the
Inspectors previously appointed shall fail to attend, or refuse or be unable to
serve, Inspectors in place of any so failing to attend, or refusing or unable to
attend, shall be appointed in like manner.
Section 11. Procedures Governing Business of Meetings of Stockholders.
At an annual meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary. To be timely, a stockholder's notice must
be delivered to or mailed and received at the principal executive offices of the
Corporation, (a) not less than 120 days nor more than 150 days in advance of a
day corresponding to the date of mailing the Corporation's proxy statement in
connection with the previous year's annual meeting, or (b) if no annual meeting
was held in the previous year or the date of the applicable annual meeting has
been changed by more than 30 days from the date contemplated at the time of the
previous year's proxy statement, not less than a reasonable time, as determined
by the Board of Directors, prior to the date of the applicable annual meeting.
In no event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. A stockholder's notice to the Secretary shall set forth as to the matter
the stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting,
including the complete text of any resolutions to be presented at the annual
meeting, and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, and of the beneficial owner, if any, on
whose behalf the proposal is made, and of any other stockholder known by such
stockholder to be supporting such proposal on the date of such stockholder's
notice, (c) the class and number of shares of the Corporation which are owned
beneficially and of record by the stockholder, and such beneficial owner and
such other stockholders (d) any material interest of the stockholder in such
business and of such beneficial owner and such other stockholders, and (e) a
representation that the stockholder intends to appear at the meeting in person
or by proxy to submit the business specified in such notice. In addition, the
stockholder making the proposal shall promptly provide any other information
reasonably requested by the Corporation. Notwithstanding anything in the By-Laws
to the contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 11 and in Rule 14a-8
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") as
the same (or any substitute provision thereof) may be in effect from time to
time. The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 11, and if he should so
determine, the Chairman shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted. Nothing in this
By-Law shall be construed to prevent the consideration and approval or
disapproval at the Annual Meeting of reports of officers, directors, and
committees of the Board of Directors, but in connection with such reports, no
business shall be acted upon at such Annual Meeting unless the presentation of
such business is in compliance with the provisions of this By-Law.
Notwithstanding the foregoing provisions of this Section 11, a stockholder who
seeks to have any proposal included in the Corporation's proxy statement shall
comply with all the requirements of Regulation 14A under the Exchange Act.
Section 12. Notice of Stockholder Nominations. Only persons who are
nominated in accordance with the procedures set forth in this Section 12 shall
be eligible for election as Directors by the stockholders. Nominations of
persons for election to the Board of Directors of the Corporation may be made at
a meeting of stockholders (i) by or at the direction of the Board of Directors
or (ii) by any stockholder of the Corporation entitled to vote for the election
of Directors at the meeting who complies with the notice procedures set forth in
this Section 12. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation (a)
not less than 120 days nor more than 150 days in advance of a day corresponding
to the date of mailing the Corporation's proxy statement in connection with the
previous year's annual meeting or (b) if no annual meeting was held in the
previous year or the date of the applicable annual meeting has been changed by
more than 30 days from the date contemplated at the time of the previous year's
proxy statement, not less than reasonable time, as determined by the Board of
Directors, prior to the date of the applicable annual meeting. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a Director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the Corporation which are beneficially owned by such person, (iv) a
representation that the stockholder intends to appear at the meeting in person
or by proxy to make the nomination specified in such notice, (v) a description
of all arrangements or understandings among the stockholder and each nominee and
any other person or persons (naming such persons or persons) pursuant to which
the nomination or nominations are to be made by the stockholder, and (vi) any
other information relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including without limitation such person's written consent to being
named in the proxy statement as a nominee and to serving as a Director if
elected); and (b) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination is made, (i) the name and address,
as they appear on the Corporation's books, of such stockholder and such
beneficial owner and any other stockholder known by such stockholder to be
supporting such nominee on the date of such stockholder notice and (ii) the
class and number of shares of the Corporation which are beneficially owned and
of record by such stockholder and such beneficial owner and any other
stockholder known by such stockholder to be supporting such nominee on the date
of such stockholder notice. At the request of the Board of Directors any person
nominated by the Board of Directors for election as a Director shall furnish to
the Secretary, that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a Director of the Corporation unless nominated in accordance
with the procedures set forth in this Section 12. The chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
By-Laws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
Section 13. Action by Consent. (a) Unless otherwise provided in the
Certificate of Incorporation, any action which is required to be or may be taken
at any annual or special meeting of stockholders of the Corporation, subject to
the provisions of subsections (b), (c), and (d) of this Section 13, 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 have been signed
by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or to take such action at a meeting
at which all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation. Prompt notice of the taking of the corporate
action without a meeting and by less than unanimous written consent shall be
given to those stockholders who have not consented in writing and, who, if the
action had been taken at a meeting would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take action were
delivered to the Corporation.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered to the Corporation, written consents signed by
a sufficient number of holders to take action are delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of the meetings of stockholders are recorded. Delivery made
to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
(c) The record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be fixed by the Board of
Directors. Any stockholder seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
to the Secretary, request the Board of Directors to fix a record date. Upon
receipt of such a request, the Secretary shall, as promptly as practicable, call
a special meeting of the Board of Directors to be held as promptly as
practicable, but in any event not more than 10 days following the date of
receipt of such a request. At such meeting, the Board of Directors shall fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Notice
of the record date shall be published in accordance with the rules and policies
of the principal stock exchange in the United States on which securities of the
Corporation are then listed. If no record date has been so fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by the Delaware General Corporation Law, 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, by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of the
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by the Delaware General
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
(d) In the event of the delivery, in the manner provided by Paragraph
(c), to the Corporation of the requisite written consent or consents to take
corporate action and any related revocation or revocations, the Corporation may
engage nationally recognized independent inspectors of elections for the purpose
of promptly performing a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be effective until
such date as the independent inspectors certify to the Corporation that the
consents delivered to the Corporation in accordance with Paragraph (c) represent
at least the minimum number of votes that would be necessary to take the
corporate action. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
ARTICLE II.
Board of Directors
Section 1. Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors which may exercise all powers of the
Corporation and do all lawful acts and things not by statute or by the
Certificate of Incorporation or these By-Laws required to be exercised or done
by the stockholders.
Section 2. Number, Classes and Term of Office. The Board of Directors
shall consist of not less than four nor more than fifteen members which may have
an office and keep the books of the Corporation (except as may be otherwise
provided by law) in such place or places within or without the State of Delaware
as the Board of Directors from time to time by resolution may determine. Within
the limits specified above, the number of Directors shall be fixed from time to
time by the Board of Directors by resolution and the number so fixed shall
constitute the whole Board of Directors; provided, however, that no decrease in
the size of the Board shall serve to reduce the term of any Director then in
office. The Directors shall be divided into three classes as nearly equal in
number as possible. At the annual meeting held in 1986, one class of directors
(Class I) was elected for a one-year term, one class (Class II) was elected for
a two-year term and one class (Class III) was elected for a three year term. At
each succeeding annual meeting of stockholders, successors to the class of
directors whose term expires in that year will be elected for a three-year term.
None of the Directors need be a stockholder of the Corporation and none need be
a resident of the State of Delaware. The Directors shall, except as hereinafter
otherwise provided for filling vacancies, be elected by ballot at the annual
meeting of the stockholders in the manner set forth in Article I of these
By-Laws, and shall continue in office until the annual meeting for the year in
which their term expires or until their successors shall have been elected and
shall qualify. In case any increase in the number of Directors shall be effected
at any time or from time to time by the Board of Directors pursuant to this
Section, the additional offices so created may be filled as vacancies by
affirmative vote of a majority of the Directors in office at the time such
increase becomes effective. The Directors elected to such additional offices
shall serve until the annual meeting for the year in which their term expires
and until their successors have been elected and shall qualify.
Section 3. Vacancies. Vacancies and newly created directorships within
any class resulting from any increase in the authorized number of Directors, may
be filled by a majority of Directors then in office, though less than a quorum,
and any Director so chosen shall hold office for a term which shall coincide
with the term of such class to which he is elected. If there are no Directors in
office, then an election of Directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship within any class, the Directors then in office shall constitute
less than a majority of the whole board (as constituted immediately prior to any
such increase), the Court of Chancery may, upon application of any stockholder
or stockholders holding at least ten percent of the total number of the shares
at the time outstanding having the right to vote for such Directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the Directors chosen by the Directors then in
office. Sections 1 and 2 of this Article II may only be amended by the Board of
Directors pursuant to Section 5 of Article II of these By-Laws or by the
affirmative vote of not less than 66 2/3% of the stock then entitled to vote in
an election of Directors.
Section 4. Resignations. Any Director or member of a committee of the
Board of Directors may resign at any time. Such resignation shall be made in
writing or by electronic transmission and shall take effect at the time
specified therein and if no time be specified, at the time of its receipt by the
President or Secretary.
Section 5. Meetings and Consents in Lieu of Meetings. Meetings of the
Board of Directors shall be held on such dates, at such times and at such places
within or without the State of Delaware as the Board by resolution may from time
to time determine or as called by or at the order of the Chairman of the Board
or by a majority of the Directors then in office.
Regular meetings of the Board of Directors may be held without other
notice at such time and place as shall from time to time be determined by
resolution of the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President or upon
request of two directors.
The Secretary shall give notice of the date, time and place of each
meeting by mailing the same at least five days before the meeting or by
facsimile the same at least one day before the meeting, to each Director, but
such notice may be waived by any Director.
Any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if each of the Directors or
any committee thereof consent thereto in writing or by electronic transmission
and the writing or writings or electronic transmission or transmissions are
filed with the minutes of proceedings of the Board or committee.
Section 6. Participation in Meeting by Telephone. Unless otherwise
restricted by the Certificate off Incorporation or these By-Laws, members of the
Board of Directors or of any committee thereof may participate in a meeting of
such Board of Directors or committee by means of conference telephone or other
communications equipment by means of which all persons participation in the
meeting can hear each other and participation in a meeting in such manner shall
constitute presence in person at such meeting.
Section 7. Quorum. A majority of the whole Board of Directors shall
constitute a quorum for the transaction of business and the vote of a majority
of the Directors present at a meeting at which a quorum is present shall be the
act of the Board, except as may be otherwise specifically provided by statute or
by the Certificate of Incorporation. If at any meeting of the Board there be
less than a quorum present, a majority of those present may adjourn the meeting
from time to time without notice other than announcement at the meeting, until a
quorum shall be obtained. All Directors present at any meeting of the Board may
be counted in determining the presence of a quorum for all purposes and for all
matters before the meeting regardless of the interest a Director may have in any
matter brought before the meeting.
Section 8. Organization. At all meetings of the Board of Directors,
the Chairman of the Board shall preside. In the absence of the Chairman of the
Board, the Directors present shall appoint a chairman of the meeting.
Section 9. Compensation of Directors. Each Director not an officer or
an employee of the Corporation shall be entitled to receive as compensation
(payable in cash or equity in the Corporation) for his services an annual fee
and, for each day on which he shall be present at any meeting of the Board of
Directors, a meeting fee in amounts which the Board by resolution may from time
to time determine. Each Director, whether or not an officer or employee of the
Corporation, shall be entitled to reimbursement for all expenses incurred by him
in attending any meeting of the Board of Directors. Such meeting fee and
reimbursement for expenses shall be payable even though the meeting is adjourned
because of the absence of a quorum.
ARTICLE III.
Committees
Section 1. Executive Committee. The Board of Directors, may appoint
from among its members an Executive Committee, such members to serve at the
pleasure of the Board. The number of Directors to be appointed as members of the
Executive Committee shall be fixed from time to time by resolution of the Board.
In the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of each absent or
disqualified member. The Executive Committee shall concern itself with all
matters affecting the fiscal policies and financial affairs of the Corporation
and shall have and may exercise, when the Board is not in session, all the
powers of the Board in the management of the business and affairs of the
Corporation, except that it shall not have any of the powers of the Board in
connection with (i) approving or adopting, or recommending to the stockholders,
any action or matter expressly required to be submitted to stockholders for
approval or (ii) altering, amending or repealing these By-Laws (or any
resolution of the Board of Directors that by its terms provides that the
Executive Committee shall not alter, amend or repeal it.) The Executive
Committee may authorize the seal of the Corporation to be affixed to all papers
that may require it.
Section 2. Other Committees. The Board of Directors, may create from
time to time additional committees to be constituted in such manner and to have
such organization and powers as the Board of Directors in such resolution shall
provide (subject to the restrictions set forth in (i) and (ii) of the preceding
Section). All of the members of any such committee having any of the powers of
the Board of Directors shall be Directors, and the members of any such committee
not having any of the powers of the Board of Directors need not be Directors.
Section 3. Alternate Members. The Board of Directors, may designate
alternate members of any committee who shall possess the same qualifications for
eligibility as regular members and who may replace any absent or disqualified
member at any meeting of the committee in the order, if any, designated in the
resolution appointing such alternate members. In the absence or disqualification
of a committee member, the member or members present at any meeting and not
disqualified from voting, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member.
Section 4. Committee Proceedings. A quorum for transacting business by
any committee shall be one-third of the number of members of the committee as
then constituted, not including the number of alternate members, but the
alternate members present at any meeting shall be counted for the purpose of
determining if a quorum is present at the meeting. The vote of a majority of the
members, including alternate members sitting as members, present at a meeting at
which a quorum is present shall be the act of the committee. All members present
at any meeting of a committee may be counted in determining the presence of a
quorum for all purposes and for all matters before the meeting regardless of the
interest a member may have in any matter brought before the meeting. Each of the
committees may appoint a secretary of the committee, who need not be a Director.
Each of the committees shall have power to fix the date, time and place of
holding its meetings and the method of giving notice thereof and to adopt its
own rules of procedure. Each of them shall keep minutes of all its meetings
which shall be open to the inspection of any Director at any time.
Section 5. Compensation. Each member of a committee, and each alternate
member of a committee, who is not an officer or an employee of the Corporation
shall be entitled to receive, for his services as a member or as an alternate
member of such committee, compensation (in cash or equity in the Corporation) in
such amounts as the Board of Directors by resolution may from time to time
determine. Each member of a committee, and each alternate member of a committee,
whether or not an officer or an employee of the Corporation, shall be entitled
to reimbursement for all expenses incurred by him in attending any meeting of
such committee.
ARTICLE IV.
Officers
Section 1. Officers. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a Chief Operating Officer, a
President, one or more Executive Vice Presidents, one or more Senior Vice
Presidents, one or more Vice Presidents, a Controller, a Treasurer and a
Secretary. Any number of offices may be held by the same person. All such
officers shall be elected by the Board of Directors at the meeting of the Board
of Directors held on the date of each annual meeting of the stockholders. The
Board of Directors may elect such other officers as they deem necessary, who
shall have such authority and shall perform such duties as the Board of
Directors from time to time prescribe. In its discretion, the Board of Directors
may leave any office unfilled.
All officers shall be subject to removal at any time by the vote of the
Board of Directors or by the Executive Committee of the Board of Directors.
The President or Chief Operating Officer may also appoint officers of
the Corporation's divisions or business units, but such individuals will not be
deemed to be officers of the Corporation.
Section 2. Powers and Duties of the Chairman of the Board. The Chairman
of the Board shall preside at all meetings of the stockholders and of the Board
of Directors. He shall from time to time secure information concerning the
business and affairs of the Corporation and shall promptly lay such information
before the Board of Directors. He shall communicate to the Board all matters
presented by any officer of the Corporation for its consideration, and shall
from time to time communicate to the officers such action of the Board of
Directors as may in his judgment affect the performance of their official
duties.
Section 3. Powers and Duties of the Chief Executive Officer. The Chief
Executive Officer shall be the chief executive officer of the Corporation and,
subject to the supervision, direction and control of the Board of Directors and
Chairman of the Board (if any), shall have general supervision, direction and
control of the business and officers of the Corporation with all such powers as
may be reasonably incident to such responsibilities. The Chief Executive Officer
shall implement the general directives, plans and policies formulated by the
Board of Directors and shall further have such duties responsibilities and
authorities as may be assigned to him by the Board of Directors. The Chief
Executive Officer shall have the general powers and duties of management usually
vested in the chief executive officer of a corporation.
During the time of any vacancy in the office of Chairman of the Board
or in the event of the absence or disability of the Chairman of the Board, the
Chief Executive Officer shall have the duties and powers of the Chairman of the
Board unless otherwise determined by the Board of Directors. In the absence of
the Chairman of the Board, if one be elected, the Chief Executive Officer shall
preside at meetings of the Stockholders and Board of Directors. During any time
of any vacancy in the office of Chief Operating Officer or in the event of the
absence or disability of the Chief Operating Officer, the Chief Executive
Officer shall have the duties and powers of the Chief Operating Officer unless
otherwise determined by the Board of Directors.
Section 4. Powers and Duties of the Chief Operating Officer. The Chief
Operating Officer shall be the chief operating officer of the Corporation and,
subject to the supervision, direction and control of the Chief Executive Officer
and the Board of Directors, shall manage the day-to-day operations of the
Corporation. He shall have the general powers and duties of management usually
vested in the chief operating officer of a corporation and such other powers and
duties as may be assigned to him by the Board of Directors, the Chief Executive
Officer or these By-Laws. In the absence of the Chief Operating Officer, his
duties shall be performed and his authority may be exercised by the Chief
Executive Officer or an Executive Vice President of the Corporation as may have
been designated by the Chief Operating Officer with the right reserved to the
Board of Directors to designate or supersede any designation so made.
During the time of any vacancy in the offices of the Chairman of the
Board and Chief Executive Officer or in the event of the absence or disability
of the Chairman of the Board and the Chief Executive Officer, the Chief
Operating Officer shall have the duties and powers of the Chief Executive
Officer unless otherwise determined by the Board of Directors.
Section 5. Powers and Duties of the President. The President shall have
such powers and perform such duties as may from time to time be assigned to him
by these By-Laws, the Board of Directors, the Chairman of the Board or the Chief
Executive Officer.
Section 6. Powers and Duties of the Executive Vice Presidents, Senior
Vice Presidents and Vice Presidents. Each Executive Vice President, each Senior
Vice President and each Vice President shall have such powers and perform such
duties as may from time to time be assigned to him by these By-Laws, the Board
of Directors, the Chairman of the Board, the Chief Executive Officer or the
President.
Section 7. Powers and Duties of the Controller. The Controller shall be
the principal officer in charge of the accounts of the Corporation, and shall
perform such duties as from time to time may be assigned to him by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the
President.
Section 8. Powers and Duties of the Treasurer. The Treasurer shall have
custody of all the funds and securities of the Corporation which may have come
into his hands; when necessary or proper, he may endorse or cause to be endorsed
on behalf of the Corporation for collection, checks, notes and other obligations
and shall deposit the same to the credit of the Corporation in such bank or
banks or depository or depositories as may have been designated by the Board of
Directors or the Executive Committee or by any officer authorized by the Board
of Directors or the Executive Committee to make such designation; whenever
required by the Board of Directors or Executive Committee he shall render a
statement of the funds and securities of the Corporation in his custody; and he
shall perform all acts incident to the position of Treasurer, subject to the
control of the Board of Directors and the Executive Committee.
Section 9. Powers and Duties of the Secretary. The Secretary shall keep
the minutes of all meetings of the Board of Directors and the minutes of all
meetings of the stockholders in books provided for that purpose; he shall attend
to the giving or serving of all notices of the Corporation; he may sign with the
Chairman of the Board, the President, any Executive Vice President, any Senior
Vice President or any Vice President, in the name of the Corporation, all
contracts authorized by the Board of Directors or by any committee of the
Corporation having the requisite authority and, when so ordered by the Board of
Directors or such committee, he shall affix the seal of the Corporation thereto;
he shall have charge of the stock certificate books, transfer books and stock
ledgers and such other books and papers as the Board of Directors or the
Executive Committee shall direct, all of which shall at all reasonable times be
open to the examination of any Director, upon application at the office of the
Corporation during business hours; and he shall in general perform all the
duties incident to the office of Secretary, subject to the control of the Board
of Directors and the Executive Committee.
Section 10. Powers and Duties of Additional Officers. The Board of
Directors or the Executive Committee may from time to time by resolution
delegate to any Assistant Vice President or Vice President, Assistant Controller
or Controllers, any Assistant Treasurer or Treasurers and/or any Assistant
Secretary or Secretaries, elected by the Board, any of the powers or duties
herein assigned to the Vice President, Controller, the Treasurer or the
Secretary, respectively.
Section 11. Giving of Bond by Officers. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish bonds
to the Corporation for the faithful performance of their duties, in such
penalties and with such conditions and security as said Board may require.
ARTICLE V.
Capital Stock - Seal - Fiscal Year
Section 1. Certificates for Shares. The certificates for shares of the
capital stock of the Corporation shall be in such form not inconsistent with the
Certificate of Incorporation as shall be approved by the Board of Directors. The
certificates shall be signed by the Chairman of the Board or the President and
also by the Secretary or the Treasurer and shall not be valid unless so signed.
If a certificate is counter-signed (1) by a transfer agent other than the
Corporation or its employee, or (2) by a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. If any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as though he were such officer, transfer
agent or registrar at the date of issue.
All certificates shall be consecutively numbered. The name of the
person owning the shares represented thereby with the number of such shares and
the date of issue thereof shall be entered in the Corporation's books. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, 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, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
Except as hereinafter provided, all certificates surrendered to the
Corporation shall be canceled and no new certificates shall be issued until
former certificates for the same number of shares of the same class shall have
been surrendered and canceled.
Section 2. Replacing Lost, Stolen, Destroyed or Escheated Stock
Certificates. The Board of Directors of the Corporation, or any officer or
officers of the Corporation to whom the Board of Directors has delegated
authority, may authorize any transfer agent of the Corporation to issue at any
time and from time to time until otherwise directed new certificates of stock in
the place of certificates previously issued by the Corporation, alleged to have
been lost, stolen or destroyed, upon receipt by the transfer agent of (a)
evidence of loss, theft or destruction (which may be the affidavit of the
applicant), (b) an undertaking to indemnify the Corporation and any transfer
agent and registrar of stock of the Corporation against claims that may be made
against it or them on account of the lost, stolen or destroyed certificate or
the issue of a new certificate, (c) a bond of indemnity to secure such
undertaking, of such kind, in such amount (which may be either a fixed or open
amount), and secured by such surety, as the Board of Directors, any financial
officer, or any other authorized officer or officers shall have authorized the
transfer agent to accept generally or as the Board of Directors or such officer
or officers shall approve in particular cases, and (d) any other documents or
instruments that the Board of Directors or an authorized officer or officers may
from time to time require.
The Board of Directors of the Corporation, or any officer or officers
of the Corporation to whom the Board of Directors has delegated authority, may
authorize any transfer agent of the Corporation to issue at any time and from
time to time until otherwise directed new certificates of stock, in the place of
certificates previously issued by the Corporation, representing shares of stock
of the Corporation which, together with all unclaimed dividends thereon, are
claimed and demanded by any State of the United States in accordance with
escheat laws, or unclaimed or abandoned property laws which contain a statutory
provision which relieves the issuing corporation, and any transfer agent,
registrar or other person acting for the corporation from all liability to any
person or from any loss or damage resulting from the issuance and delivery of
any such replacement certificates to the State.
Section 3. Transfer of Shares. A transfer book shall be kept by the
Corporation or by one or more agents appointed by it, in which the shares of the
capital stock of the Corporation shall be transferred. Shares of the capital
stock of the Corporation shall be transferred on the books of the Corporation by
the holder thereof in person or by his attorney duly authorized in writing, upon
surrender and cancellation of certificates for a like number of shares.
Section 4. Regulations. The Board of Directors shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
the capital stock of the Corporation.
The Board of Directors may appoint one or more transfer agents and
registrars of transfers and may require all stock certificates to bear the
signature of one of the transfer agents and of one of the registrars of
transfers so appointed.
Section 5. Fixing of Record Dates. In order to determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action (other than action by consent, which is the subject of
Article I, Section 13 of these By-Laws), the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Dividends. Subject to the provisions of the Certificate of
Incorporation of the Corporation, the Board of Directors may declare dividends
from the surplus of the Corporation or from the net profits arising from its
business.
Subject to the provisions of the Certificate of Incorporation of the
Corporation, the dividends on any class of stock of the Corporation, if
declared, shall be payable on dates to be fixed by the Board of Directors.
Section 7. Corporate Seal. The Board of Directors may provide a
suitable seal, containing the name of the Corporation, which seal shall be in
the charge of the Secretary. If and when so directed by the Board of Directors,
a duplicate of the seal may be kept and be used by the Treasurer, any Assistant
Secretary or any Assistant Treasurer.
Section 8. Fiscal Year. The fiscal year of the Corporation shall begin
on the first day of October and terminate on the thirtieth day of September in
each year.
ARTICLE VI.
Signing of Checks, Notes, Etc.
All checks, drafts, bills of exchange, notes or other obligations or
orders for the payment of money shall be signed by such officer or officers or
employee or employees of the Corporation and in such manner as shall from time
to time be determined by resolution of the Board of Directors or by any officer
of the Corporation authorized by resolution of the Board of Directors to sign on
behalf of the Corporation with respect to such obligations.
<PAGE>
ARTICLE VII.
Indemnification.
The Corporation (i) shall indemnify every person who is or was a
director or officer of the corporation or is or was serving at the Corporation's
request as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise; and has been successful on the merits or
otherwise in defense of any action, suit or proceeding or in defense of any
claim, issue or matter and (ii) shall, if the Board of Directors so determines
that indemnification is proper with respect to a person who is a Director or
officer at the time of such determination, indemnify such Director or officer;
(iii) and shall upon a determination that indemnification is proper indemnify
any person who is or was a Director, Officer, employee or agent of the
Corporation or is or was serving at the Corporation's request as a Director,
Officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise to the extent, in the manner, and subject to
compliance with the applicable standards of conduct, provided by Section 145 of
the General Corporation Law of the State of Delaware as the same (or any
substitute provision thereof) may be in effect from time to time.
Such indemnification (i) shall not be deemed exclusive of any other
rights to which any person seeking indemnification under or apart from this
Article VI may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and (ii) shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
The Corporation shall pay the expenses (including attorneys' fees)
incurred in defending any civil, criminal, administrative or investigative
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding, provided, however, that the payment of expenses incurred by
a director, officer, employee or agent in advance of the final disposition of
the action, suit or proceeding shall be made only upon receipt of an undertaking
by or on behalf of the director, officer, employee or agent to repay all amounts
advanced if it should be ultimately determined that such person is not entitled
to be indemnified under this Article VII or otherwise.
ARTICLE VIII.
Offices.
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, state of Delaware.
Section 2. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation may require.
<PAGE>
ARTICLE IX.
Amendments.
Except as provided in the Certificate of Incorporation of the
Corporation, these By-Laws may be altered, amended or repealed, or new By-Laws
may be adopted, by the Board of Directors or by the stockholders at any meeting
the notice of which shall have stated the amendment of the By-Laws as one of the
purposes of the meeting. Any By-Laws adopted by the Board of Directors may be
altered, amended or repealed by the stockholders at any annual meeting or at any
special meeting, provided that notice of such proposed alteration, amendment or
repeal shall have been given in the notice of the meeting.
