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EXHIBIT 3.2.2
WESTERN DIGITAL CORPORATION
(A DELAWARE CORPORATION)
BY-LAWS
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 9 East Loockerman Street, Dover, and the name the registered agent in charge
thereof shall be National Registered Agents, 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
By-laws 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 By-laws 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.
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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
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 for such purpose shall be the close of business on the
day on which the Board shall adopt the resolution relating thereto. A
determination of stockholders entitled to notice of or to vote at a meeting of
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
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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 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.
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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 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 By-laws, 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.
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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:
(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 By-laws or the adoption of new
By-laws;
(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.
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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
authority, and perform such duties as are provided in these By-laws 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 By-laws
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
By-laws 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
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law or these By-laws 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.
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 By-laws
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 By-laws, 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 By-laws, 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
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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.
(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 By-laws, 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
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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.
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
By-laws, 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 By-laws 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 By-laws, or any of them, may be altered,
amended or repealed, and new By-laws 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 By-laws 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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