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EXHIBIT 3.2.1
WESTERN DIGITAL CORPORATION
(A DELAWARE CORPORATION)
BYLAWS
ARTICLE I
OFFICES
1.01 Registered Office. The registered office of Western
Digital Corporation (hereinafter the "Corporation") in the State of Delaware
shall be at 32 Lookerman Square, Suite L-100, Dover, Delaware, and the name of
the registered agent in charge thereof shall be Prentice-Hall Corporation
System, Inc.
1.02 Principal Office. The principal office for the
transaction of the business of the Corporation shall be 8105 Irvine Center
Drive, in the City of Irvine, County of Orange, State of California. The Board
of Directors (hereinafter called the Board) is hereby granted full power and
authority to change said principal office from one location to another.
1.03 Other Offices. The Corporation may also have such
other offices at such other places, either within or without the State of
Delaware, as the Board may from time to time determine or as the business of
the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.01 Annual Meetings. Annual meetings of the stockholders
of the Corporation for the purpose of electing directors and for the
transaction of such proper business as may come before such meetings may be
held at such time, date and place as the Board shall determine by resolution.
2.02 Special Meetings. Special meetings of the
stockholders may be called at any time by the Board, the Chairman of the Board,
the President, or by stockholders entitled to cast not less than ten percent of
the votes at such meeting.
2.03 Place of Meetings. All meetings of the stockholders
shall be held at such places, within or without the State of Delaware, as may
from time to time be designated by the person or persons calling the respective
meeting and specified in the respective notices or waivers of notice thereof.
2.04 Notice of Meetings. Except as otherwise required by
law, notice of each meeting of the stockholders, whether annual or special,
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each stockholder of record entitled to vote at such
meeting by delivering a typewritten or printed notice thereof to the
stockholder personally, or by depositing such notice in the United States mail,
in a postage-prepaid envelope, directed to the stockholder at the post office
address furnished by the stockholder to the Secretary of the Corporation for
such purpose or, if the stockholder shall not have furnished to the Secretary
the stockholder's address for such purpose, then at the stockholder`s post
office address last known to the Secretary, or by transmitting a notice thereof
to the stockholder at such address by telecopy, telegraph, cable, or wireless.
Except as otherwise expressly required by law, no publication of any notice of
a meeting of the stockholder shall be required. Every notice of a meeting of
the stockholders shall state the place, date and hour of the meeting, and in
the case of a special meeting, shall also state the purpose or purposes for
which the meeting is called. Notice of any meeting of stockholders shall not
be required to be given to any stockholder to whom notice may be omitted
pursuant to applicable Delaware law or who shall have waived such notice and
such notice shall be deemed waived by any stockholder who shall attend such
meeting in person or by proxy except a stockholder who shall attend such
meeting for the express purpose of objecting at the beginning of the meeting to
the transaction of business because the meeting is not lawfully called or
convened. Except as otherwise expressly required by law, notice of any
adjourned meeting of the stockholder need not be given if the time and place
thereof are announced at the meeting at which the adjournment is taken.
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2.05 Quorum. Except as otherwise required by law, the
holders of record of a majority in voting interest of the shares of stock of
the Corporation entitled to be voted at any meeting of stockholders of the
Corporation, present in person or by proxy, shall constitute a quorum at any
meeting or any adjournment thereof, a majority in voting interest of the
stockholder present in person or by proxy and entitled to vote thereat or, in
the absence therefrom of all stockholders, any officer entitled to preside at,
or to act as secretary of, such meeting may adjourn such meeting from time to
time. At any such adjourned meeting at which a quorum is present any business
may be transacted which might have been transacted at the meeting as originally
called.
2.06 Voting.
(a) Each stockholder shall, at each meeting of the
stockholders, be entitled to vote in person or by proxy each share or
fractional share of the stock of the Corporation having voting rights on the
matter in question and which shall have been held by and registered in the name
of the stockholder on the books of the Corporation:
(i) on the date fixed pursuant to Section 2.09 of
these Bylaws as the record for the determination of stockholder entitled to
notice of and to vote at such meeting, or
(ii) if no such record date shall have been so
fixed, then (a) at the close of business on the day next preceding the day on
which notice of the meeting shall be given or (b) if notice of the meeting
shall be waived, at the close of business on the day next preceding the day on
which the meeting shall be held.
(b) Shares of its own stock belonging to the Corporation or
to another corporation, if a majority of the shares entitled to vote in the
election of directors in such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes. Persons holding stock of the Corporation in a
fiduciary capacity shall be entitled to vote such stock. Persons whose stock
is pledged shall be entitled to vote, unless in the transfer by the pledgor on
the books of the Corporation the pledgor shall have expressly empowered the
pledge to vote thereon. Stock having voting power standing of record in the
names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants in common, tenants by entirety or otherwise, or with respect to
which two or more persons have the same fiduciary relationship, shall be voted
in accordance with the provisions of the General Corporation Law of the State
of Delaware.
(c) Any such voting rights may be exercised by the
stockholder entitled thereto in person or by the stockholder's proxy appointed
by an instrument in writing, subscribed by such stockholder or by the
stockholder`s attorney thereunto authorized and delivered to the secretary of
the meeting; provided, however, that no proxy shall be voted or acted upon
after eleven months from its date unless said proxy shall provide for a longer
period. The attendance at any meeting of a stockholder who may theretofore
have given a proxy shall not have the effect of revoking the same unless the
stockholder shall in writing so notify the secretary of the meeting prior to
the voting of the proxy. At any meeting of the stockholders all matters,
except as otherwise provided in the Certificate of Incorporation, in these
Bylaws or by law, shall be decided by the vote of a majority in voting interest
of the stockholders present in person or by proxy and entitled to vote thereat
and thereon, a quorum being present. The vote at any meeting of the
stockholder on any question need not be by ballot, unless so directed by the
chairman of the meeting. On a vote by ballot each ballot shall be signed by
the stockholder voting, or by his proxy, if these be such proxy, and it shall
state the number of share voted.
2.07 List of Stockholders. The Secretary of the
Corporation shall prepare and make, at least ten (10) 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. 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 (10) 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.
2.08 Judges. If at any meeting of the stockholder a vote
by written ballot shall be taken on any questions, the chairman of such meeting
may appoint a judge or judges to act with respect to such vote. Each judge so
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appointed shall first subscribe an oath faithfully to execute the duties of a
judge at such meeting with strict impartiality and according to the best of his
ability. Such judges shall decide upon the qualification of the voters and
shall report the number of shares represented at the meeting and entitled to
vote on such question, shall conduct and accept the votes, and, when the voting
is completed, shall ascertain and report the number of share voted respectively
for and against the question. Reports of judges shall be in writing and
subscribed and delivered by them to the Secretary of the Corporation. The
judges need not be stockholders of the Corporation, and any officer of the
Corporation may be a judge on any question other than a vote for or against a
proposal in which he shall have a material interest.
2.09 Fixing Date for Determination of Stockholder of
Record. In order that the Corporation may 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 other change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action. If in any case involving the
determination of stockholders for any purpose other than notice of or voting at
a meeting of stockholders the Board shall not fix such a record date, the
record date for determining stockholders shall apply to any adjournment of such
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
2.10 Stockholder Proposals and Nominations.
(a) At an annual meeting of stockholders, only such
business shall be conducted, and only such proposals shall be acted upon, as
shall have been brought before the annual meeting by or at the direction of a
majority of the directors or by any stockholder of the Corporation who complies
with the notice procedures set forth in this Section 2.10(a). For a proposal
to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be delivered to,
or mailed and received at, the principal executive offices of the corporation
not less than 60 days nor more than 120 days prior to the scheduled annual
meeting, regardless of any postponements, deferrals or adjournments of that
meeting to a later date; provided, however, that if less than 70 days' notice
or prior public disclosure of the date of the scheduled annual meeting is given
or made, notice by the stockholder, to be timely, must be so delivered or
received not later than the close of business on the tenth day following the
earlier of the day on which such notice of the date of the scheduled annual
meeting was mailed or the day on which such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the proposal desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and address,
as they appear on the Corporation's books, of the stockholder proposing such
business and any other stockholders known by such stockholder to be supporting
such proposal, (iii) the class and number of shares of the Corporation's stock
which are beneficially owned by the stockholder on the date of such stockholder
notice and by any other stockholders known by such stockholder to be supporting
such proposal on the date of such stockholder notice, and (iv) any financial
interest of the stockholder in such proposal. The presiding officer of the
annual meeting shall determine and declare at the annual meeting whether the
stockholder proposal was made in accordance with the terms of this Section
2.10(a). If the presiding officer determines that a stockholder proposal was
not made in accordance with the terms of this Section 2.10(a), he or she shall
so declare at the annual meeting and any such proposal shall not be acted upon
at the annual meeting. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors
and committees or the Board of Directors, but, in connection with such reports,
no new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
(b) Subject to the rights, if any, of the holders of shares
of Preferred Stock then outstanding, only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of
the Corporation may be made at a meeting of stockholders by or at the direction
of the Board of Directors, by any nominating committee or person appointed by
the Board of Directors or 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 2.10(b). 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
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the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not less than 60 days nor more than 120 days prior to the scheduled
annual meeting, regardless of any postponements, deferrals or adjournments of
that meeting to a later date; provided, however, that if less than 70 days'
notice or prior public disclosure of the date of the scheduled annual meeting
is given or made, notice by the stockholder, to be timely, must be so delivered
or received not later than the close of business on the tenth day following the
earlier of the day on which such notice of the date of the scheduled annual
meeting was mailed or the day on which such public disclosure was made. A
stockholder's notice to the Secretary shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or re-election as a
director, (A) the name, age, business address and residence address of the
person, (B) the principal occupation or employment of the person, (C) the class
and number of shares of capital stock of the Corporation which are beneficially
owned by the person and (D) any other information relating to the person that
is required to be disclosed in solicitations for proxies for election of
directors pursuant to applicable rules and regulations of the Securities and
Exchange Commission promulgated under the Securities Exchange Act of 1934, as
amended; and (ii) as to the stockholder giving the notice (A) the name and
address, as they appear on the Corporation's books, of the stockholder and (B)
the class and number of shares of the Corporation's stock which are
beneficially owned by the stockholder on the date of such stockholder notice.
The corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as director of the Corporation.
The presiding officer of the annual meeting shall determine and declare at the
annual meeting whether the nomination was made in accordance with the terms of
this Section 2.10(b). If the presiding officer determines that a nomination
was not made in accordance with the terms of this Section 2.10(b), he or she
shall so declare at the annual meeting and any such defective nomination shall
be disregarded.
ARTICLE III
BOARD OF DIRECTORS
3.01 General Powers. The property, business and affairs of
the Corporation shall be managed by the Board.
3.02 Number and Term of Office. The number of directors
shall be not less than five nor more than twelve until this Section 3.02 is
amended by a resolution duly adopted by the Board or by the shareholders, in
either case, in accordance with the provisions of the Certificate of
Incorporation of the Corporation. The specific number of directors at any time
shall be that number between five and twelve as may be determined from time to
time by the Board by resolution. Directors need not be stockholders. Each of
the directors of the Corporation shall hold office until his successor shall
have been duly elected and shall qualify or until he shall resign or shall have
been removed in the manner hereinafter provided.
3.03 Election of Directors. The directors shall be elected
annually by the stockholders of the Corporation and the persons receiving the
greatest number of votes, up to the number of directors to be elected, shall be
the directors.
3.04 Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board or to the Secretary of
the Corporation. Any such resignation shall take effect at the time specified
therein, or, if the time be not specified, it shall take effect immediately
upon its receipt; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
3.05 Vacancies. Except as otherwise provided in the
Certificate of Incorporation, any vacancy in the Board, whether because of
death, resignation, disqualification, an increase in the number of directors,
or any other cause, may be filed by vote of the majority of the remaining
directors, although less than a quorum. Each director so chosen to fill a
vacancy shall hold office until his successor shall have been elected and shall
qualify or until he shall resign or shall have been removed in the manner
hereinafter provided.
3.06 Place of Meeting, Etc. The Board may hold any of its
meetings at such place or places within or without the State of Delaware as the
Board may from time to time by resolution designate or as shall be designated
by the person or persons calling the meeting or in the notice or a waiver of
notice of any such meeting. Directors
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may participate in any regular or special meeting of the Board by means of
conference telephone or similar communications equipment pursuant to which all
persons participating in the meeting of the Board can hear each other, and such
participation shall constitute presence in person at such meeting.
3.07 First Meeting. The Board shall meet as soon as
practicable after each annual election of directors and notice of such first
meeting shall not be required.
3.08 Regular Meetings. Regular meetings of the Board shall
be held at such times as the Board shall from time to time by resolutions
determine. If any day fixed for a regular meeting shall be a legal holiday at
the place where the meeting is to be held, then the meeting shall be held at
the same hour and place on the next succeeding business day not a legal
holiday. Except as provided by law, notice of regular meetings need not be
given.
3.09 Special Meetings. Special meetings of the Board for
any purpose or purposes may be called at any time by the Chairman of the Board,
the President, any Vice President, the Secretary or any two directors. Special
meetings of the Board shall not be held upon not less than four days' written
notice or not less than 48 hours' given personally or by telephone, telegraph,
telecopy, telex or other similar means of communication. Any such notice shall
be addressed or delivered to each director at such director's address as it is
shown upon the records of the Corporation or as may have been given to the
Corporation by the director for the purpose in which the meetings of the
directors are regularly held. Notice by mail shall be deemed to have been
given at the time a written notice is deposited in the United States mails,
postage prepaid. Any other written notice shall be deemed to have been given
at the time it is personally delivered to the recipient or is delivered to a
common carrier for transmission, or actually transmitted by the person giving
the time it is communicated, in person or by telephone or wireless, to the
recipient or to a person at the office of the recipient who the person giving
the notice has reason to believe will promptly communicate it to the recipient.
3.10 Quorum and Manner of Acting. Except as otherwise
provided in these Bylaws, the Certificate of Incorporation, or by law, the
presence of a majority of the authorized number of directors shall be required
to constitute a quorum for the transaction of business at any meeting of the
Board, and all matters shall be decided at any such meeting, a quorum being
present, by the affirmative votes of a majority of the directors present. A
meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, provided any action taken
is approved by at lease a majority of the required quorum for such meeting. In
the absence of a quorum, a majority of directors present at any meetings may
adjourn the same from time to time until a quorum shall be present. Notice of
any adjourned meeting need not be given. The directors shall act only as a
Board, and the individual directors shall have no power as such.
3.11 Action by Consent. Any action required or permitted
to be taken at any meeting of the Board or of any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members
of the Board or of such committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the Board or committee.
3.12 Removal of Directors. Subject to the provisions of
the Certificate of Incorporation, any director may be removed at any time,
either with or without cause, by the affirmative vote of the stockholders
having a majority of the voting power of the Corporation given at a special
meeting of the stockholders called for the purpose.
3.13 Compensation. The directors shall receive only such
compensation for their services as directors as may be allowed by resolution of
the Board. The Board may also provide that the Corporation shall reimburse
each such director for any expense incurred by him on account of his attendance
at any meetings of the Board of Committees of the Board. Neither the payment
of such compensation nor the reimbursement of such expenses shall be construed
to preclude any director from serving the Corporation or its subsidiaries in
any other capacity and receiving compensation therefor.
3.14 Committees. The Board may appoint one or more
committees, each consisting of one or more directors, and delegate to such
committees any of the authority of the Board permitted by law except with
respect to:
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(a) The approval of any action for which the General
Corporation Law also requires shareholders approval or approval of the
outstanding shares;
(b) The filing of vacancies on the Board or on any
committee;
(c) The fixing of compensation of the directors for serving
on the Board or on any committee;
(d) The amendment or repeal of Bylaws or the adoption of
new Bylaws;
(e) The amendment or repeal of any resolution of the Board
which by its express terms in not so amendable or repealable;
(f) A distribution to the shareholders of the corporation
except at a rate or in a periodic amount or within a price range determined by
the Board;
(g) The appointment of other committees of the Board or the
members thereof.
Any such committee must be appointed by resolution adopted
by a majority of the authorized number of directors and may be designated an
Executive Committee or by such other name as the Board shall specify. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent member at any meeting of the committee.
The appointment of members or alternate members of a committee requires the
vote of a majority of the authorized number of directors. The Board shall have
the power to prescribe the manner in which proceedings of any such committee
shall be conducted. In the absence of any such prescription, such committee
shall have the power to prescribe the manner in which its proceedings shall be
conducted. Unless the Board or such committee shall provide, the regular and
special meetings of any such committee shall be governed by the provisions of
this Article applicable to meetings and actions of the Board. Minutes shall be
kept of each meeting of such committee.
3.15 Executive Committee. The passage of any resolution of
the committee designated by the Board as the Executive Committee shall, in
addition to any other limitations prescribed by the Board in accordance with
the provisions of Section 3.14, require the affirmative vote of a majority of
directors present and voting on such resolution who are not employees of the
Corporation.
3.16 Rights of Inspection. Every director shall have the
right to any reasonable time to inspect and copy all books, records, and
documents of every kind and to inspect the physical properties of the
corporation and also of its subsidiary corporations, domestic or foreign. Such
inspection by a director may be made in person or by agent or attorney and
includes the right to copy and obtain extracts.
ARTICLE IV
OFFICERS
4.01 Corporate Officers. The officers of the Corporation
shall be a President, a Secretary, and a Chief Financial Officer. The
Corporation may also have, at the discretion of the Board, a Chairman of the
Board (who shall not be considered an officer of the Corporation), one or more
Vice Presidents, a Treasurer, one or more Assistant Treasurers, one or more
Assistant Secretaries, and such other officers as may be elected or appointed
in accordance with the provisions of Section 4.03 or Section 4.06 of this
Article.
4.02 Election, Term of Office and Qualifications. The
officers of the Corporation, except such officers as may be appointed in
accordance with Sections 4.01(b) or 4.05, shall be appointed annually by the
Board at the first meeting thereof held after the election of the Board. Each
officer shall hold office until such officers shall resign or shall be removed
or otherwise disqualified to serve, or the officer's successor shall be
appointed and qualified.
4.03 Subordinate Officers. The Board may elect, and may
empower the President to appoint, such other officers as the business of the
Corporation may require, each of whom shall hold office for such period, have
such
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authority, and perform such duties as are provided in these Bylaws or as the
Board may from time to time determine.
4.04 Removal. Any officer of the Corporation may be
removed, with or without cause, at any time at any regular or special meeting
of the Board by a majority of the directors of the Board at the time in office
or, except in the case of an officer appointed by the Board, by any officer of
the Corporation or committee of the Board upon whom or which such power of
removal may be conferred by the Board.
4.05 Resignations. Any officer may resign at any time by
giving written notice of such officer's resignation to the Board, the
President, or Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein, or, if the time be not specified, upon
receipt thereof by the Board, President, or Secretary. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
4.06 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification, or other event, may be filled for the
unexpired portion of the term thereof in the manner prescribed in the Bylaws
for regular appointments to such office.
4.07 President. The President of the Corporation shall be
the Chief Executive Officer and general manager of the Corporation and shall
have, subject to the control of the Board, general supervision, direction and
control of the business and officers of the Corporation. The President shall
preside at all meetings of the stockholders and, in the absence of the Chairman
of the Board, or if there be none, at all meetings of the Board. The President
shall have the general powers and duties of management usually vested in the
office of president and general manager of a corporation and such other powers
and duties as may be prescribed by the Board.
4.08 Vice Presidents. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board or,
if not ranked, the Vice President designated by the Board, shall perform all
the duties of the President, and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board.
4.09 Secretary. The Secretary shall keep or cause to be
kept, at the principal executive office and such other place as the Board may
order, a book of minutes of all meetings of the stockholders, the Board, and
its committees, with the time and place of holding, whether regular or special,
and, if special, how authorized, the notice thereof given, the names of those
present at Board and committee meetings, the number of shares present or
represented at stockholder's meetings, and the proceedings thereof. The
Secretary shall keep, or cause to be kept, at the principal executive office or
at the office of the Corporation's transfer or registrar, if one be appointed,
a share register, or a duplicate share register, showing the names of
stockholders and their addresses, the number and classes of share of stock held
by each, the number and date of certificates issued for the same, and the
number and date of cancellation if every certificate surrendered for
cancellation. The Secretary shall give, or cause to be given, notice of all
the meetings of the stockholders and of the Board of any committees thereof
required by these Bylaws or by law to be given, shall keep the seal of the
Corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board.
4.10 Chief Financial Officer. The Chief Financial Officer
shall keep and maintain, or cause to be kept and maintained, adequate and
correct amounts of the properties and business transactions of the Corporation,
and shall send or cause to be sent to the stockholders of the Corporation such
financial statements and reports as are by law or these Bylaws required to be
sent to them. The books of account shall at all times be open to inspection by
any directors. The Chief Financial Officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the Board. The Chief Financial Officer
shall disburse the funds of the Corporation as may be ordered by the Board,
shall render to the President and directors, whenever they request it, an
account of all transactions as Chief Financial Officer and of the financial
condition of the corporation, and shall have such other powers and perform such
other duties as may be prescribed by the Board.
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4.11 Compensation. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board. No officer shall be
prevented from receiving such compensation by reason of the fact that the
officer is also a director of the Corporation. Nothing contained herein shall
preclude any officer from serving the Corporation, or any subsidiary
corporation, in any other capacity and receiving compensation therefor.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.01 Execution of Contracts. The Board, except as in these
Bylaws otherwise provided, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confined to
specific instances. Unless so authorized by the Board or by these Bylaws, no
officer, agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or in any amount.
5.02 Checks, Drafts, Etc. All checks, drafts or other
orders for payment of money, notes or other evidence of indebtedness, issued in
the name of or payable to the Corporation, shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall be determined
by resolution of the Board. Each authorized person shall give such bond, if
any, as the Board may require.
5.03 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies and other depositories as the Board may select,
or as may be selected by any officer or officers, assistant or assistants,
agent or agents, or attorney or attorneys of the Corporation to whom such power
shall have been delegated by the Board. For the purpose of deposit and for the
purpose of collection for the account of the Corporation, the President and
Vice President or the Treasurer (or any other officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation who
shall from time to time be determined by the Board) may endorse, assign and
deliver checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation.
5.04 General and Special Bank Accounts. The Board may from
time to time authorize the opening and keeping of general and special bank
accounts with such banks, trust companies or other depositories as the Board
may select or as may be selected by any officer or officers, assistant or
assistants, agent or agents, or attorney or attorneys of the Corporation to
whom such power shall have been delegated by the Board. The Board may make
such special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as it may deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
6.01 Certificates for Stock.
(a) The Shares of the Corporation shall be represented by
certificates, provided that the Board may provide by resolution or resolutions
that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board
every holder of stock represented by certificates and upon request every holder
of uncertificated shares shall be entitled to have a certificate, in such form
as the Board shall prescribe, signed by, or in the name of the Corporation by
the Chairman or Vice Chairman of the Board, or the President or Vice President,
and by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation representing the number of shares
registered in certificate form. Any of or all of the signatures on the
certificates may be facsimile. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been placed upon,
any such certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may nevertheless
be issued by the Corporation with the same effect as though the person who
signed such certificate, or whose facsimile signature shall have been place
thereupon, were such officer, transfer agent or registrar at the date of issue.
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(b) A record shall be kept of the respective names of the
persons, firms or corporations owning the stock represented by such
certificates, the number and class of shares represented by such certificates,
respectively, and the respective dates thereof, and in case of cancellation,
the respective dates of cancellation. Every certificate surrendered to the
Corporation for exchange or transfer shall be cancelled, and no new certificate
or certificates shall be issued in exchange for any existing certificate until
such existing certificate shall have been so cancelled, except in cases
provided for in Section 6.04
6.02 Transfers of Stock. Transfers of shares of stock of
the Corporation shall be made only on the books of the Corporation by the
registered holder thereof, or by such holder`s attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, or with a
transfer clerk or a transfer agent appointed as provided in Section 6.03, and
upon surrender of the certificate or certificates for such shares properly
endorsed and the payment of all taxes thereon. The person in whose names
shares of stock stand on the books of the Corporation shall be deemed the owner
thereof for all purposes as regards the Corporation. Whenever any transfer of
shares shall be made for collateral security, and not absolutely, such fact
shall be so expressed in the entry of transfer if, when the certificate or
certificates shall be presented to the Corporation for transfer agents and one
or more registrars, and may require all certificates for stock to bear the
signature or signatures of any of them.
6.03 Regulations. This Board may make such rules and
regulations as it may deem expedient, not inconsistent with these Bylaws,
concerning the issue, transfer and registration of certificates for shares of
the stock of the Corporation. It may appoint, or authorize any officer or
officers to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
6.04 Lost, Stolen, Destroyed, and Mutilated Certificates.
In any case of loss, theft, destruction, or mutilation of any certificate of
stock, another may be issued in its place upon proof of such loss, theft,
destruction, or mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct; provided,
however, that a new certificate may be issued without requiring any bonds when,
in the judgment of the Board, it is proper to do so.
ARTICLE VII
INDEMNIFICATION
7.01 Scope of Indemnification. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact that
such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding to
the fullest extent permitted by Delaware law and the Certificate of
Incorporation.
7.02 Advance of Expenses. Costs and expenses (including
attorneys' fees) incurred by or on behalf of a director, officer, employer or
agent in defending or investigating any action, suit proceeding or
investigation shall be paid by the Corporation in advance of the final
disposition of such matter, if such director, officer, employee or agent shall
undertake in writing to repay any such advances in the event that it is
ultimately determined that he is not entitled to indemnification.
Notwithstanding the foregoing, no advance shall be made by the Corporation if a
determination is reasonably and promptly made by the Board by a majority vote
of a quorum of disinterested directors, or (if such a quorum is not obtained
or, even if obtainable, a quorum of disinterested directors so directs) by
independent legal counsel, that, based upon the facts known to the Board or
counsel at the time such determination is made, (a) the director, officer,
employee or agent acted in bad faith or deliberately breached his duty to the
Corporation or its stockholders, and (b) as a result of such actions by the
director, officer, employee or agent, it is more likely than not that it will
ultimately be determined that such director, officer, employee or agent is not
entitled to indemnification.
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7.03 Other Rights and Remedies. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
subsections of the Article shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office.
7.04 Continuation of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 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 their
heirs, executors and administrators of such a person.
7.05 Insurance. Upon resolution passed by the Board, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of the Article.
ARTICLE VIII
MISCELLANEOUS
8.01 Seal. The Board shall provide a corporate seal, which
shall be in the form of a circle and shall bear the name of the Corporation and
words and figures showing that the Corporation was incorporated in the State of
Delaware and the year of incorporation.
8.02 Waiver of Notices. Whenever notice is required to be
given by these Bylaws or the Certificate of Incorporation or by law, the person
entitled to said notice may waive such notice in writing, either before or
after the time stated therein, and such waiver shall be deemed equivalent to
notice. Attendance of a person at a meeting (whether in person or by proxy in
the case of a meeting of stockholders) shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of any regular or special meeting
of the stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice.
8.03 Amendments. These Bylaws, or any of them, may be
altered, amended or repealed, and new Bylaws may be made, (i) by the Board, by
vote of a majority of the number of directors then in office as directors,
acting at any meeting of the Board, or (ii) by the stockholders, provided that
notice of such proposed amendment, modification, repeal or adoption is given in
the notice of special meeting. Any Bylaws made or altered by the stockholders
may be altered or repealed by either the Board or the stockholders.
8.04 Representation of Other Corporations. The President,
any Vice President, or Secretary of this Corporation are authorized to vote,
represent and exercise on behalf of this Corporation all rights incident to any
and all shares of any other corporation or corporations standing in the name of
this Corporation. The authority herein granted to said officers to vote or
represent on behalf of this Corporation any and all shares held by this
Corporation in any other corporation or corporations may be exercised either by
such officers in person or by any person authorized so to do by proxy or power
of attorney duly executed by said officers.
# # #
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Amendments:
Article I, 1.01 03/07/91: Registered Address
Article I, 1.02 09/06/90: Principal Office Address
Article II, 2.10 05/19/94 Stockholder Proposals and Nominations
Article III, 3.02 09/22/87: Number of directors 9
" 06/23/88: Number of directors 10
" 06/30/88: Number of directors 9
" 01/01/89: Number of directors 10
" 07/27/89: Number of directors 9
" 09/28/90: Number of directors 8
" 11/15/90: Number of directors 7
" 11/15/90: Number of directors 8
" 09/12/91: Number of directors 7
" 06/01/92: Number of directors 8
" 01/19/93: Number of directors 9
" 05/27/93: Number of directors NLT 5, NMT 12,
specific number to be determined by
Board resolution
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