Exhibit 3.2
BY-LAWS
OF
INACOM CORP.
ARTICLE I. OFFICES
The principal office of the corporation shall be located in Omaha,
Nebraska. The corporation may have such other offices, either within or without
the State of Delaware as the Board of Directors may designate or as the business
of the corporation may require from time to time.
ARTICLE II. STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders shall
be on a date and at an hour determined by the Board of Directors for the purpose
of electing directors and for the transaction of such other business as may come
before the meeting.
Section 2. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Board of Directors.
Section 3. Place and Time of Meeting. The Board of Directors may
designate the time at any place, either within or without the State of Delaware,
as the time and place of the meeting for any annual meeting or for any special
meeting called by the Board of Directors.
Section 4. Notice of Meeting. Notice of a meeting of stockholders stating
the place, day and hour of the meeting and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given not less
than ten nor more than sixty days before the date of the meeting by or at the
direction of the President or the Secretary to each stockholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, addressed to the stockholder at
his address as it appears on the stock transfer books of the corporation, with
postage thereon prepaid. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant
to the notice of meeting. Any previously scheduled meeting of the stockholders
may be postponed, and (unless the Certificate of Incorporation otherwise
provides) any special meeting of the stockholders may be cancelled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
Section 5. Record Date. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or stockholders entitled to receive payments of any
dividend, or an order to make a determination of stockholders for any other
proper purpose, the Board of Directors of the corporation shall fix in advance a
date as the record date for any such determination of stockholders, such date in
any case to be not less than ten days nor more than sixty days prior to the date
on which the particular action, requiring such determination of stockholders, is
to be taken. If no record date is fixed for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders, or stockholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of stockholders. When a determination of stockholders
entitled to vote at any meeting of stockholders has been made as provided in
this section, such determination shall apply to any adjournment thereof.
Section 6. Voting Lists. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten days, prior to such meeting, shall be kept on
file at the registered office of the corporation and shall be subject to
inspection by any stockholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any stockholder during the whole time of
the meeting. The stock transfer book containing the most recently made complete
list of stockholders shall be prima facie evidence as to who are the
stockholders entitled to examine such list or transfer books or to vote at any
meeting of stockholders.
Section 7. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders. If less than a majority of the
outstanding shares are represented at a meeting, the Chairman or a majority of
the shares so represented may adjourn the meeting from time to time without
further notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. The stockholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
purported withdrawal from the meeting of enough stockholders to leave less than
a quorum.
Section 8. Proxies; Voting. At all meetings of stockholders, a
stockholder may vote by proxy. Such proxy shall be filed with the Secretary of
the corporation before or at the time of the meeting. No proxy shall be valid
after eleven months from the date of its execution, unless otherwise provided in
the proxy.
Section 9. Voting of Shares. In each meeting of stockholders except as
otherwise provided by statute or the Certificate of Incorporation, every holder
of record of stock entitled to vote shall be entitled to one vote in person or
by proxy for each share of such stock standing in such holder's name on the
corporation's list of stockholders as provided in Section 6 above. At all
meetings of stockholders for the election of directors a plurality of the votes
cast shall be sufficient to elect a director. All other elections and questions
shall, unless otherwise provided by the Certificate of Incorporation, these
By-Laws, the rules or regulations of NASD or any stock exchange applicable to
the corporation, as otherwise provided by law or pursuant to any regulation
applicable to the corporation or its securities, be decided by the affirmative
vote of the holders of a majority of the shares of stock of the corporation
which are present in person or by proxy and entitled to vote thereon.
Section 10. Voting of Shares by Certain Holders. Shares standing in the
name of another corporation may be voted by such officer, agent or proxy as the
by-laws of such corporation may prescribe, or, in the absence of such provision,
as the board of directors of such corporation may determine.
Shares held by an administrator, executor, guardian or conservator may be
voted by such person, either in person or by proxy, without a transfer of such
shares into such person's name. Shares standing in the name of a trustee or
trustees may be voted by such person, either in person or by proxy, but no
trustee shall be entitled to vote shares held by such person without a transfer
of such shares into such trustee's name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into such receiver's name if authority so
to do be contained in an appropriate order of the court by which such receiver
was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until such shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to the corporation or held by it in a
fiduciary capacity shall not be voted, directly or indirectly, at any meeting,
and shall not be counted in determining the total number of outstanding shares
at any given time or the presence of a quorum at a meeting. Nothing herein shall
be construed as limiting the right of the corporation to vote stock, including
but not limited to its own stock, held by it in a fiduciary capacity.
Section 11. Notice of Stockholder Business. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting (a) by or at the direction of the Board of Directors or (b)
by any stockholder of the corporation who was a stockholder of record at the
time of giving of notice provided for in Section 4, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section 11. For business to be properly brought before an annual meeting by a
stockholder, a stockholder must have given timely notice thereof in writing to
the Secretary of the corporation and such business must otherwise be a proper
matter for stockholder action. 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 90 nor more than 120 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event the date of the annual meeting is advanced by more than 30 days, or
delayed by more than 60 days, from such anniversary date, notice by the
stockholder to be timely must be so delivered or mailed and received not earlier
than the 120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or the tenth
day following the date on which public announcement of the date of such meeting
is first made. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (a) a description of the
business desired to be brought before the annual meeting, the text of the
proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the By-Laws of the corporation, the language of the proposed amendment), and the
reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the corporation's list of stockholders, of the
stockholder proposing such business, and the name and address of the beneficial
owner, if any, on whose behalf the proposal is made, (c) the class and number of
shares of the corporation which are owned of record and beneficially by the
stockholder and the beneficial owner, if any, (d) any material interest of the
stockholder and beneficial owner, if any, in such business, stockholder and
beneficial owner, if any, in such business, (e) a representation that the
stockholder is a holder of record of stock of the corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
propose such business and (f) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends to (i)
deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the corporation's outstanding capital stock required to approve or
adopt the proposal and/or (ii) otherwise solicit proxies from stockholders in
support of such proposal. Notwithstanding anything in the By-Laws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 11. The Chairman of an
annual meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance with the
provisions of this Section 11, and if the Chairman should so determine, shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 12. Notice of Director Nominees at an Annual Meeting. Only
persons who are nominated with the procedures set forth in these By-Laws shall
be eligible for election as directors. Nominations of persons for election to
the Board of Directors of the corporation may be made at an annual meeting of
stockholders (a) by or at the direction of the Board of Directors or (b) by any
stockholder of the corporation who was a stockholder of record at the time of
giving of notice provided for in Section 4, who is entitled to vote at the
annual meeting and who complies with the notice procedures set forth in this
Section 12. Such nominations, other than those made by or at the direction of
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 90 nor more than 120 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event the date of the annual meeting is advanced by more than 30 days, or
delayed by more than 60 days, from such anniversary date, notice by the
stockholder to be timely must be so delivered or mailed and received not earlier
than the 120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or the tenth
day following the date on which public announcement of the date of such meeting
is first made. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to applicable federal law (including such person's written consent to
be named as a nominee and to serving as the director if elected); and (b) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination is made, (i) the name and address, as they appear on the
corporation's list of stockholders, of such stockholder and the name and address
of the beneficial owner, if any, (ii) the class and number of shares of the
corporation which are owned of record and beneficially by such stockholder and
the beneficial owner, if any, (iii) a representation that the stockholder is a
holder of record of stock of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to propose such
nomination, and (iv) a representation whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends to (a) deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the corporation's outstanding capital stock required to elect the nominee and/or
(b) otherwise solicit proxies from stockholders in support of such nomination.
At the request of the Board of Directors any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee. No person shall be eligible for
election as a director of the corporation unless nominated in accordance with
the procedures set forth in the By-Laws. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by the By-Laws, and if the
Chairman should so determine, shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 13. Notice of Stockholder Nominees at a Special Meeting. Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the corporation's notice of
meeting. Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which directors are to be elected
pursuant to the corporation's notice of meeting (a) by or at the direction of
the Board of Directors or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder
of the corporation who is a stockholder of record at the time of giving of
notice provided for in Section 4, who shall be entitled to vote at the special
meeting and who complies with the notice procedures set forth in Section 12. In
the event the corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board of Directors, any such
stockholder may nominate a person or persons (as the case may be), for election
to such position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by Section 12 shall be delivered to the Secretary
at the principal executive offices of the corporation not earlier than the close
of business on the 120th day prior to such special meeting and not later than
the close of business on the later of the 90th day prior to such special meeting
or the 10th day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above.
Section 14. Inspectors of Elections. The Board of Directors by resolution
shall appoint one or more inspectors, which inspector or inspectors may include
individuals who serve the corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives, to act at the
meetings of stockholders and make a written report thereof. One or more persons
may be designated as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate has been appointed to act or is able to act at
a meeting of stockholders, the Chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by law.
Section 15. Conduct of Meetings. The date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at a
meeting shall be announced at the meeting by the person presiding over the
meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the Chairman of any meeting of
stockholders shall have the right and authority to convene and to adjourn the
meeting, to prescribe such rules, regulations and procedures and to do all such
acts, as in the judgment of such Chairman, are appropriate for the proper
conduct of the meeting. Unless and to the extent determined by the Board of
Directors or the Chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with any prescribed rules of parliamentary
procedure.
ARTICLE III. BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the corporation
shall be managed by its Board of Directors. In addition to the powers and
authorities by these By-Laws 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 Certificate of Incorporation or
by these By-Laws required to be exercised or done by the stockholders.
Section 2. Number, Tenure and Qualifications. The number of directors of
the corporation shall be fixed by resolution of the Board of Directors and may
be altered from time to time by a majority vote of the members of the Board of
Directors present at any regular or special meeting of the Board. Each director
shall hold office until the next annual meeting of the stockholders and until a
successor shall have been elected and qualified. The Board of Directors may
designate one of its members to serve as Chairman of the Board of Directors.
Such Chairman shall serve as chairman of all meetings of stockholders and
directors.
Section 3. Regular Meetings. A regular meeting of the Board of Directors
shall be held on the same date as the annual meeting of stockholders. The Board
of Directors may provide, by resolution, the time and place, either within or
without the State of Delaware, for the holding of additional regular meetings.
Section 4. Special Meetings. Special meetings of the Board of Directors
unless otherwise prescribed by statute, may be called by or at the request of
the President or a majority of the Board of Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix any place,
either within or without the State of Delaware as the place for holding any
special meeting of the Board of Directors called by them.
Section 5. Notice. Notice of any special meeting of the Board of
Directors shall be given at least three (3) days in advance thereof. Notices of
meetings of the Board of Directors may be given by mail or may (and, if three or
fewer days notice is given, shall) be given by telegram, telephone, personal
delivery, telecopier or other means of electronic transmission. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
so addressed, with postage thereon prepaid. If notice be given by telegram or by
telecopy, such notice shall be deemed to be delivered when transmitted. Any
director may waive notice of any meeting. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting 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 Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 6. Quorum. A majority of the number of directors fixed in
accordance with Section 2 of this Article III shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such number is present at a meeting, these directors present may adjourn
the meeting from time to time without further notice.
Section 7. Manner of Acting. Except as otherwise required by applicable
law, the act of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. Any action
required or permitted to be taken at any meeting of the Board of Directors may
be taken without a meeting if a written consent thereto is signed by all members
of the Board and such written consent is filed with the minutes of the
proceedings of the Board. A consent in lieu of meeting may be made either by one
consent signed by all the directors or by individual consents signed by each
director. The directors may also meet by means of conference telephone or
similar communications equipment as provided by Delaware law.
Section 8. Vacancies. Vacancies in the Board of Directors and newly
created directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, although
less than a quorum. Directors so chosen shall hold office until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the full Board of Directors shall shorten
the term of any incumbent director.
Section 9. Compensation. By resolution of the Board of Directors, the
Directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors and/or other remuneration as Director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 10. Presumption of Assent. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless a
dissent shall be entered in the minutes of the meeting or unless such person
shall file a written dissent to such action with the person acting as the
secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the corporation immediately after
the adjournment of the meeting. Such right to dissent shall not apply to a
Director who voted in favor of such action.
Section 11. Executive Committee. An Executive Committee of two or more
Directors may be designated by the Board of Directors. The Executive Committee,
to the extent provided in such resolution, shall have and may exercise all of
the authority of the Board of Directors, except that such Committee shall not
have the authority of the Board of Directors in reference to: (1) amending the
Articles of Incorporation, (2) approving a plan of merger or consolidation, (3)
recommending to the stockholders the sale, lease or exchange of all or
substantially all the property and assets of the corporation, (4) recommending
to the stockholders the voluntary dissolution of the corporation, (5) declaring
any dividend in cash or in kind or authorizing any distribution of any shares of
capital stock of the corporation or rights to purchase any capital stock of the
corporation.
Section 12. Additional Committees. Such other committees may be
designated by the Board of Directors as the Board of Directors may deem
necessary. Such committees shall perform such functions as shall be assigned to
them and shall be compensated for such functions, as shall be determined by the
Board of Directors.
ARTICLE IV. OFFICERS
Section 1. Number. The officers of the corporation shall consist of a
President, one or more Vice Presidents (the number thereof to be determined by
the Board of Directors), a Secretary, and a Treasurer, each of whom shall be
elected by the Board of Directors. Such other officers and assistant officers as
may be deemed necessary may be elected or appointed by the Board of Directors.
Any two or more offices may be held by the same person.
Section 2. Election and Term of Office. The officers of the corporation
to be elected by the Board of Directors shall be elected annually by the Board
of Directors at the first meeting of the Board of Directors held after each
annual meeting of the stockholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office until such officer's
successor shall have been duly elected and shall have qualified or until such
officer's death or until such officer shall resign or shall have been removed in
the manner hereinafter provided.
Section 3. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 4. Vacancies. A vacancy in an office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 5. The President. The President shall be the principal
executive officer of the corporation and, subject to the control of the Board of
Directors, shall in general supervise and control all of the business and
affairs of the corporation The President may sign, with the Secretary or any
other proper officer of the corporation thereunto authorized by the Board of
Directors, certificates for shares of the corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
By-Laws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 6. The Vice President. In the absence of the President or in
the event of his death, inability or refusal to act, the Vice President (or in
the event there be more than one Vice President, the Vice Presidents in the
order designated by the Board of Directors at the time of their election, or in
the absence of any designation, then in the order of their election) shall
perform 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. Any Vice
President may sign, with the Secretary or an Assistant Secretary, certificates
for shares of the corporation; and shall perform such other duties as from time
to time may be assigned by the President or the Board of Directors.
Section 7. The Secretary. The Secretary shall: (a) keep the minutes of
the stockholders' and of the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these By-Laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all documents the execution of which on behalf
of the corporation under its seal is duly authorized; (d) keep a register of the
post office address of each stockholder which shall be furnished to the
Secretary by such stockholder; (e) sign with the President, or a Vice President,
certificates for shares of the corporation, the issuance of which shall have
been authorized by resolution of the Board of Directors; (f) have general charge
of the stock transfer books of the corporation; and (g) in general perform all
duties incident to the office of Secretary and such other duties as from time to
time may be assigned by the President or by the Board of Directors.
Section 8. The Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. The
Treasurer shall: (a) have charge and custody of and be responsible for all funds
and securities of the corporation; receive and give receipts for monies due and
payable to the corporation from any source whatsoever, and deposit all such
monies in the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with provisions of Article V of
these By-Laws; and (b) in general perform all of the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
by the President or by the Board of Directors.
Section 9. Assistant Secretaries and Assistant Treasurers. The
Assistant Secretaries, when authorized by the Board of Directors, may sign with
the President or a Vice President certificates for shares of the corporation,
the issuance of which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall respectively, if required by the Board
of Directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board of Directors shall determine. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or by
the President or the Board of Directors.
Section 10. Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that such person is also a director
of the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 3. Checks, Drafts, etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
and in such banks, trust companies or other depositaries as the Board of
Directors may select.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. Certificates representing shares of
the corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the President or a Vice
President and by the Secretary or an Assistant Secretary. All certificates for
shares shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are issued, with
the number of shares and date of issue, shall be entered on the stock transfer
books of the corporation. All certificates surrendered to the corporation for
transfer shall be cancelled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
cancelled, except that in case of a lost, destroyed or mutilated certificate a
new one may be issued therefor upon such terms and indemnity to the corporation
as the Board of Directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the corporation
shall be made only on the stock transfer books of the corporation by the holder
of record thereof or by his legal representative, who shall furnish proper
evidence of authority to transfer, or by his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the corporation,
and on surrender for cancellation of the certificate for such shares. The person
in whose name shares stand on the books of the corporation shall be deemed by
the corporation to be the owner thereof for all purposes.
ARTICLE VII. INDEMNIFICATION
Section 1. Actions by Others. The corporation shall indemnify any
person who was or is a party to or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (other than an action by or in the
right of the corporation) 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 if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe the conduct was criminal. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interest of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the conduct was criminal.
Section 2. Actions by or in the Right of the Corporation. 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 or suit by or in
the right of the corporation to procure a judgment in its favor 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)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
Section 3. Successful Defense. To the extent that a director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise, including, without limitation, the dismissal of an action without
prejudice in defense of any action, suit or proceeding referred to in Sections 1
and 2 of this Article, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
Section 4. Specific Authorization. Any indemnification under Sections 1
and 2 of this Article (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in said Sections 1 and 2. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 5. Advance of Expenses. Expenses incurred by an elected officer
or director in defending a civil or criminal action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such director or
elected officer to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the corporation as authorized
in this Article. Such expenses incurred by other officers, employees and agents
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
Section 6. Right of Indemnity Not Exclusive. The indemnification and
advancement of expenses provided by or granted pursuant to the Certificate of
Incorporation or these By-Laws shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Section 7. Insurance. 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
the status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of this
Article, Section 145 of the General Corporation Law of the State of Delaware, or
otherwise.
Section 8. Employee Benefit Plans. For purposes of this Article,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the corporation" shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the corporation" as
referred to in this Article.
Section 9. Invalidity of any Provisions of this Article. The invalidity
of unenforceability of any provision of this Article shall not affect the
validity or unenforceability of the remaining provisions of this Article.
Section 10. Continuation of Indemnification. The indemnification and
advancement of expenses, to the extent provided by or granted pursuant to this
Article, these By-Laws, or the Certificate of Incorporation shall continue as to
a person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors, and administrators of such person.
All rights to indemnification provided by or granted pursuant to this Article,
these By-Laws, or the Certificate of Incorporation shall be deemed to be a
contract between the corporation and each director, officer, employee, or agent
of the corporation who serves or served in such capacity at any time while this
Article VII is in effect. Any repeal or modification of this Article VII shall
not in any way diminish any rights to indemnification of such director, officer,
employee or agent, or the obligations of the corporation arising hereunder.
Section 11. Certain Claims. Notwithstanding Section 1 and Section 2 of
this Article VII, the corporation shall be required to indemnify a person
described in the first sentence of Section 1 or Section 2 of this Article VII in
connection with an action, suit or proceeding (or part thereof) commenced by
such a person only if the commencement of such proceeding (or part thereof) by
such person was authorized by the Board of Directors.
ARTICLE VIII. FISCAL YEAR
The fiscal year of the corporation shall end on the last Saturday of
December of each year.
ARTICLE IX. DIVIDENDS
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its Certificate of Incorporation.
ARTICLE X. WAIVER OF NOTICE
Whenever any notice is required to be given to any stockholder or
director of the corporation under the provisions of these By-Laws or under the
provisions of the Certificate of Incorporation or under the provisions of the
Delaware Business Corporation Act, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
ARTICLE XI. AMENDMENTS
These By-Laws may be altered, amended or repealed and new By-Laws may
be adopted by the Board of Directors at any regular or special meeting of the
Board of Directors.
2/17/99