Exhibit 3.1
IMATION CORP.
BYLAWS
As Amended October 24, 1996
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ARTICLE I
SEAL
Section 1. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization, and shall be in such form as may
be approved from time to time by the Board of Directors. Said seal may be used
by causing it or a facsimile thereof to be impressed or affixed or otherwise
reproduced.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders shall be held at such date,
time, and place either within or without the State of Delaware as may be
designated by the Board of Directors from time to time in the notice of the
meeting. An annual meeting shall be held for the election of directors, and any
other proper business may be transacted thereat.
Section 2. The holders of a majority of each class of stock issued and
outstanding, and entitled to vote thereat, present in person, or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by law, by the Restated
Certificate of Incorporation, or by these Bylaws. For purposes of the foregoing,
two or more classes or series of stock shall be considered a single class if the
holders thereof are entitled to vote together as a single class at the meeting.
In the absence of a quorum the stockholders so present may, by majority vote,
adjourn the meeting from time to time in the manner provided by Section 3 of
Article II of these Bylaws until a quorum shall attend.
Section 3. Any meeting of stockholders, annual or special, may adjourn
from time to time and reconvene at the same or some other place, and notice need
not be given of any such adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 4. At any meeting of the stockholders every stockholder having
the right to vote shall be entitled to vote in person, or by proxy appointed by
an instrument in writing subscribed by such stockholder and bearing a date not
more than three (3) years prior to said meeting, unless said instrument provides
for a longer period. Unless otherwise provided in the Restated Certificate of
Incorporation or as otherwise determined by the Board of Directors pursuant to
the powers conferred by the Restated Certificate of Incorporation, each
stockholder shall have one vote for each share of stock having voting power
registered in his or her name on the books of the Corporation.
Section 5. Written notice of the annual meeting which shall state the
place, date, and hour of the meeting shall be mailed to each stockholder
entitled to vote thereat at such address as appears on the stock book of the
Corporation, at least ten (10) days prior to the meeting and not more than sixty
(60) days prior to the meeting.
Section 6. No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corporation (i) who
is a stockholder of record on the date of the giving of the notice provided for
in this Section and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
not less than sixty (60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within ten (10) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received before the
later of the close of business on the tenth (10th) day following the day on
which such notice of the date of the annual meeting was mailed or the day on
which public disclosure of the date of the annual meeting was made, whichever
first occurs and the close of business on the day which is sixty (60) days prior
to the date of the annual meeting.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iv) a description of
all arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section, provided, however, that, once business has
been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section shall be deemed to preclude discussion by
any stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
Section 7. A complete list of the stockholders entitled to vote at each
meeting of stockholders, arranged in alphabetical order, with the record address
of each, and the number of voting shares held by each, shall be prepared by the
Secretary and made available for examination by any stockholder either at a
place within the city where the meeting is to be held, which place shall be so
specified in the notice of the meeting or, if not specified, at the place where
the meeting is to be held, at least ten (10) days before every meeting, and
shall at all times during said meeting continue to be open to the examination of
any stockholder.
Section 8. Special meetings of the stockholders may be called for any
purpose or purposes by the Chairman of the Board, and shall be called by the
Secretary at the request in writing of the Chairman of the Board or of a
majority of the Board of Directors. Business transacted at all special meetings
shall be confined to the objects stated in the notice of the meeting.
Section 9. Written notice of a special meeting of stockholders, stating
the time and place and object thereof, shall be mailed postage prepaid, at least
ten (10) days before such meeting, to each stockholder entitled to vote thereat
at such address as appears on the books of the Corporation.
Section 10. The Board of Directors shall appoint two persons as
inspectors of election, to serve for one year or until their successors are
chosen. The inspectors shall act at meetings of stockholders on elections of
Directors and on all other matters voted upon by ballot.
If at the time of any meeting inspectors have not been appointed or if
none, or only one, of the inspectors is present and willing to act, the Chairman
of the Board shall appoint the required number of inspectors so that two
inspectors shall be present and acting.
ARTICLE III
DIRECTORS
Section 1. The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors, except as may be otherwise
provided by law or in the Restated Certificate of Incorporation.
Section 2. Except as otherwise fixed by or pursuant to the provisions
of Article FOURTH of the Restated Certificate of Incorporation (as it may be
duly amended from time to time) relating to the rights of the holders of any
class or series of stock having a preference over the common stock as to
dividends or upon liquidation to elect, by separate class vote, additional
directors, the number of directors of the Corporation shall be the number fixed
from time to time by the affirmative vote of a majority of the total number of
directors which the Corporation would have, prior to any increase or decrease,
if there were no vacancies. The persons receiving the votes of a plurality in
amount of holders of the shares of capital stock of the Corporation, considered
as a single class, entitled to vote generally in the election of directors
present at the meeting in person or by proxy shall be directors for the term
prescribed by Article TENTH of the Restated Certificate of Incorporation or
until their successors shall be elected and qualified.
Section 3. Newly created directorships resulting from an increase in
the number of directors of the Corporation and vacancies occurring in the Board
of Directors resulting from death, resignation, retirement, removal, or any
other reason shall be filled by the affirmative vote of a majority of the
directors, although less than a quorum, then remaining in office and elected by
the holders of the capital stock of the Corporation entitled to vote generally
in the election of directors or, in the event that there is only one such
director, by such sole remaining director. Any director elected in accordance
with the preceding sentence shall hold office for the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified.
Section 4. Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation, except as may be otherwise provided in the Restated Certificate of
Incorporation of the Corporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board of Directors may be made at any annual meeting of stockholders (a) by or
at the direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder
of record on the date of the giving of the notice provided for in this Section
and on the record date for the determination of stockholders entitled to vote at
such annual meeting and (ii) who complies with the notice procedures set forth
in this Section.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
not less than sixty (60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within ten (10) days before or after such anniversary date,
notice by the stockholder in order to be timely must be so received before the
later of the close of business on the tenth (10th) day following the day on
which such notice of the date of the annual meeting was mailed or the day on
which public disclosure of the date of the annual meeting was made, whichever
first occurs and the close of business on the day which is sixty (60) days prior
to the date of the annual meeting.
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. If the Chairman of the annual meeting determines that a nomination was
not made in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
Section 5. In addition to the powers and authorities by these Bylaws
expressly conferred upon them, the Board of Directors may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Restated Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
ARTICLE IV
COMMITTEES OF DIRECTORS
Section 1. The Board of Directors may by resolution or resolutions
passed by a majority of the whole Board, designate an Executive Committee and
one or more committees, each committee to consist of one (1) or more Directors
of the Corporation, which, to the extent provided in said resolution or
resolutions or in these Bylaws, or unless otherwise prescribed by statute, shall
have and may exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation, and may have power to authorize the
seal of the Corporation to be affixed to all papers which may require it. Such
committee or committees shall have such name or names as may be stated in these
Bylaws or as may be determined from time to time by resolution adopted by the
Board.
Section 2. The committees of the Board of Directors shall keep regular
minutes of their proceedings and report the same to the Board when required. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in place of any absent or
disqualified member.
ARTICLE V
COMPENSATION OF DIRECTORS
Section 1. The compensation of the Directors of the Corporation shall
be fixed by resolution of the Board of Directors.
ARTICLE VI
MEETINGS OF THE BOARD
Section 1. Regular meetings of the Board of Directors may be held at
such places within or without the State of Delaware and at such times as the
Board may from time to time determine, and if so determined notice thereof need
not be given.
Section 2. Special meetings of the Board may be held at any time or
place within or without the State of Delaware whenever called by the Chairman of
the Board, if any, or by any two directors. Reasonable notice thereof shall be
given by the persons or persons calling the meeting.
Section 3. Unless otherwise restricted by the Restated Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any
committee designated by the Board, may participate in a meeting of the Board or
of such committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting.
Section 4. Meetings of the Board of Directors shall be presided over by
the Chairman of the Board, if any, or in the absence of the Chairman of the
Board, by a chairman chosen at the meeting. The Secretary, or in the absence of
the Secretary an Assistant Secretary, shall act as secretary of the meeting, but
in the absence of the Secretary and any Assistant Secretary, the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 5. Unless otherwise restricted by the Restated Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors, or of any committee thereof, may be taken
without a meeting if all members of the Board or of such committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board or committee.
Section 6. At all meetings of the Board of Directors, a majority of the
Directors shall constitute a quorum for the transaction of business, and the
vote of a majority of the Directors present at any meeting at which there is a
quorum, shall be the act of the Board, except as may be otherwise specifically
provided by statute or by the Restated Certificate of Incorporation or by these
Bylaws. In case at any meeting of the Board a quorum shall not be present, the
members of the Board present may adjourn the meeting from time to time until a
quorum shall attend.
ARTICLE VII
OFFICERS
Section 1. The officers of the Corporation shall be elected by the
Board of Directors at its annual meeting, or if the case requires, at any other
regular or special meeting; and shall be a Chairman of the Board of Directors, a
President and a Secretary, and, if it so determines, one or more vice
presidents, a Treasurer, one or more assistant secretaries, one or more
assistant treasurers, and such other officers as the Board shall deem desirable.
The same person may hold any two offices at the same time.
Section 2. The Board of Directors may appoint such other officers and
agents as it shall deem desirable with such further designations and titles as
it considers desirable, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board.
Section 3. The compensation of the officers of the Corporation shall be
fixed by or under the direction of the Board of Directors.
Section 4. Except as otherwise provided in the resolution of the Board
of Directors electing any officer, each officer shall hold office until the
first meeting of the Board after the annual meeting of stockholders next
succeeding his or her election, and until his or her successor is elected and
qualified or until his or her earlier resignation or removal. Any officer may
resign at any time upon written notice to the Board or to the Chairman or the
Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein, no acceptance of such
resignation shall be necessary to make it effective. The Board may remove any
officer with or without cause at any time. Any such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election of an officer shall not of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
death, resignation, removal, or otherwise may be filled for the unexpired
portion of the term by the Board at any regular or special meeting.
Section 5. The officers of the Corporation shall have such powers and
duties in the management of the Corporation as shall be stated in these Bylaws
or in a resolution of the Board of Directors which is not inconsistent with
these Bylaws, and, to the extent so stated, as generally pertain to their
respective offices, subject to the control of the Board. The Board may require
any officer, agent, or employee to give security for the faithful performance of
his or her duties.
ARTICLE VIII
CERTIFICATES OF STOCK
Section 1. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as they are
issued. They shall exhibit the holder's name and number of shares and shall be
signed by the Chairman of the Board, or a vice president, and the Treasurer or
an assistant treasurer, or the Secretary or an assistant secretary. The Board of
Directors may adopt the facsimile signature of any such officer as his or her
signature and give to such facsimile the same force and effect as though it were
written on the certificates of stock by such officer, and upon appointment of a
Transfer Agent and Registrar any certificate bearing such facsimile signature
when certified and registered by such Transfer Agent and Registrar shall be
deemed duly signed, and unless and until changed by the Board, certificates in
the form so adopted may be issued and delivered whether the said officer so
signing and to be taken as so signing the same continue to be such officers or
whether because of death, resignation, or otherwise they, or either of them,
cease to be such officers.
ARTICLE IX
LOST, STOLEN, OR DESTROYED STOCK CERTIFICATE
Section 1. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen, or destroyed, and the Corporation may require the owner of the lost,
stolen, or destroyed certificate, or such owner's legal representative, to give
the Corporation a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft, or destruction of any
such certificate or the issuance of such new certificate.
ARTICLE X
FISCAL YEAR
Section 1. The fiscal year shall begin on the first day of January in
each year.
ARTICLE XI
NOTICES
Section 1. Whenever under the provisions of these Bylaws notice is
required to be given to any Director, officer, or stockholder, it shall not be
construed to mean personal notice, but such notice may be given by any means or
instrumentality reasonably designed for such purpose and permitted by law.
Section 2. Whenever notice is required to be given by law or under any
provision of the Restated Certificate of Incorporation or these Bylaws, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting 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 unless so required by the Restated
Certificate of Incorporation or these Bylaws.
ARTICLE XII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. The Corporation shall indemnify, to the full extent
authorized or permitted by law, any person made or threatened to be made a
party, witness or participant in or to any action, suit, or proceeding, whether
criminal, civil, administrative, or investigative, by reason of the fact that
such person or such person's testator or intestate is or was a Director,
officer, or employee of the Corporation or serves or served at the request of
the Corporation any other enterprise as a director, officer, or employee.
Expenses incurred by any such person in defending any such action,
suit, or proceeding or as a witness or participant shall be paid or reimbursed
by the Corporation promptly upon receipt by it of an undertaking of such person
to repay such expenses if it shall ultimately be determined that such person is
not entitled to be indemnified by the Corporation. The rights provided to any
person by this Section shall be enforceable against the Corporation by such
person who shall be presumed to have relied upon it in serving or continuing to
serve as a Director, officer, or employee. No amendment of this Section shall
impair the rights of any person arising at any time with respect to events
occurring prior to such amendment.
For purposes of this Section, the term "Corporation" shall include any
predecessor of the Corporation and any constituent corporation (including any
constituent of a constituent) absorbed by the Corporation in a consolidation or
merger; the term "other enterprise" shall include any corporation, partnership,
joint venture, trust, or employee benefit plan; service "at the request of the
Corporation" shall include service as a Director, officer, or employee of the
Corporation which imposes duties on, or involves services by, such Director,
officer, or employee with respect to an employee benefit plan, its participant
or beneficiaries; any excise taxes assessed on a person with respect to an
employee benefit plan shall be deemed to be indemnifiable expenses; and action
by a person with respect to an employee benefit plan which such person
reasonably believes to be in the interest of the participants and beneficiaries
of such plan shall be deemed to be action not opposed to the best interest of
the Corporation.
Section 2. The indemnification provided by these Bylaws shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
by any Bylaw, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, or employee and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
Section 3. The Corporation shall have power to 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 him or her and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the Corporation would
have the power to indemnify him or her against such liability under the
provisions of these Bylaws.
ARTICLE XIII
INTERESTED DIRECTORS
Section 1. No contract or transaction between the Corporation and one
or more of its Directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its Directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the Director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or her or their votes are counted for such
purpose, if: (i) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the Board or
the committee, and the Board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
Directors, even though the disinterested Directors be less than a quorum; or
(ii) the material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved, or
ratified by the Board, a committee thereof, or the stockholders. Common or
interested Directors may be counted in determining the presence of a quorum at a
meeting of the Board or of a committee which authorizes the contract or
transaction.
ARTICLE XIV
FORM OF RECORDS
Section 1. Any records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute
books, may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs, or any other information storage device, provided
that the records so kept can be converted into clearly legible form within a
reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect the same.
ARTICLE XV
AMENDMENTS
Section 1. Subject to any limitations imposed by the Restated
Certificate of Incorporation, the Board of Directors shall have power to adopt,
amend, or repeal these Bylaws. Any Bylaws made by the directors under the powers
conferred by the Restated Certificate of Incorporation may be amended or
repealed by the directors or by the stockholders. Notwithstanding the foregoing
and any other provisions of the Restated Certificate of Incorporation or these
Bylaws (and notwithstanding that a lesser percentage may be specified by law),
no provisions of these Bylaws shall be adopted, amended or repealed by the
stockholders without an affirmative vote of the holders of not less than eighty
percent (80%) of the voting power of all of the outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of
directors, considered for the purposes of this Section as a single class.