BY-LAWS
OF
INACOM CORP.
(As Amended Through October 24, 1996)
ARTICLE I. OFFICES
The principal office of the corporation shall be at 10810 Farnam Drive,
Suite 200, Omaha, Nebraska 68154.
The principal office of the corporation in the State of Delaware shall be
located in the City of Wilmington, County of New Castle. 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.
The registered office of the corporation required by The Delaware
Corporation Law to be maintained in the State of Delaware may be, but need not
be, identical with the principal office in the State of Delaware, and the
address of the required office may be changed from time to time by filing the
required statement with the Secretary of State.
ARTICLE II. SHAREHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of the shareholders shall
be on a date determined by the Board of Directors prior to the end of the
applicable fiscal year and which in no event will be later than 140 days after
the close of such fiscal year, at an hour as is specified 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. If the day fixed for the annual
meeting shall be a legal holiday in the State of Delaware, such meeting shall be
held on the next succeeding business day. If the election of Directors shall
not be held on the day designated herein for any annual meeting of the
shareholders, or at any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of the shareholders as soon
thereafter as conveniently may be.
Section 2. SPECIAL MEETINGS. Special meetings of the shareholders, 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. A waiver of notice signed by all shareholders entitled to vote at a
meeting may designate the time at any place, either within or without the State
of Delaware, as a place for holding of such meeting. If no designation is made,
or if a special meeting be otherwise called, the place of the meeting shall be
the registered office of the corporation in the State of Delaware at two o'clock
p.m.
Section 4. NOTICE OF MEETING. Written or printed notice 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 delivered not less
than ten nor more than fifty days before the date of the meeting, either
personally or by mail, by or at the direction of the President or the Secretary,
or the officer or persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the shareholder
at his address as it appears on the stock transfer books of the corporation,
with postage thereon prepaid.
Section 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or shareholders entitled to
receive payments of any dividend, or an order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the stock transfer books shall be closed for a
stated period but not to exceed, in any case, fifty days. If the stock transfer
books shall be closed for the purpose of determining shareholders entitled to
notice of or to vote at a meeting of shareholders, such books shall be closed
for at least ten days immediately preceding such meeting. In lieu of closing
the stock transfer books, the Board of Directors may fix in advance a date as
the record date for any such determination of shareholders, such date in any
case to be not more than fifty days and, in case of a meeting of shareholders,
not less than ten days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken. If the stock
transfer books are not closed and no record date is fixed for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders,
or shareholders 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 recorded date for such determination of shareholders. When a determination
of shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
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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 shareholders, a complete list of the shareholders
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 shareholder 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 shareholder during the whole time
of the meeting. The original stock transfer book shall be prima facie evidence
as to who are the shareholders entitled to examine such list or transfer books
or to vote at any meeting of shareholders.
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 shareholders. If less than a majority of
the outstanding shares are represented at a meeting, 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 shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
Section 8. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or by his duly authorized
attorney in fact. 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. Subject to the provisions of Section 11 of
this Article II, each outstanding share entitled to vote shall be entitled to
one vote upon each matter submitted to a vote at a meeting of shareholders.
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 him, either in person or by proxy, without a transfer of such shares
into his name. Shares standing
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in the name of a trustee may be voted by him, either in person or by proxy, but
no trustee shall be entitled to vote shares held by him without a transfer of
such shares into his 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 his name if authority so to do be
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the 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.
Section 11. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
shareholders entitled to vote with respect to the subject matter thereof.
Section 12. NOTICE OF STOCKHOLDER BUSINESS. At an annual meeting of the
shareholders, 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 shareholder of InaCom who complies with the notice procedures set forth
in this Section 12. For business to be properly brought before an annual
meeting by a shareholder, a shareholder must have given timely notice thereof in
writing to the Secretary of InaCom. To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive offices of
InaCom, not less than 60 nor more than 90 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 20 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 90th day prior
to such annual meeting and not later than the close of business on the later of
the 60th 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. A
shareholder's notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the annual meeting (a) 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, (b) the name and
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address, as they appear on InaCom's books, of the shareholder proposing such
business, (c) the class and number of shares of InaCom which are beneficially
owned by the shareholder and (d) any material interest of the shareholder in
such business. 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 12. 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 12, 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 13. NOTICE OF STOCKHOLDER NOMINEES. 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 InaCom may be made at a meeting of shareholders (a) by or at the
direction of the Board of Directors or (b) by any shareholder of InaCom entitled
to vote for the election of directors at the meeting who complies with the
notice procedures set forth in this Section 13. 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 InaCom. To be timely, a
shareholder's notice shall be delivered to or mailed and received at the
principal executive offices of InaCom not less than 60 nor more than 90 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 20 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 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th 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. Such shareholder's notice shall set
forth (a) as to each person whom the shareholder 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 Regulation 14A
under the Securities Exchange Act of 1934, as amended (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 shareholder giving the notice (i) the name and
address, as they appear on InaCom's books, of such shareholder and (ii) the
class and number of shares of InaCom which are beneficially owned by such
shareholder. 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 InaCom that information required to be set forth in a shareholder's notice of
nomination which
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pertains to the nominee. No person shall be eligible for election as a director
of InaCom 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.
ARTICLE III. BOARD OF DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its Board of Directors.
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 shareholders and until
his successor shall have been elected and qualified, provided that any director
or the entire Board of Directors may be removed at any time, with or without
cause, by a majority vote of all the shares of the corporation issued and
outstanding. Directors need not be residents of the State of Delaware or
shareholders of the corporation.
Section 3. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held without other notice than this By-Law immediately after, and at
the same place as, the annual meeting of shareholders. 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 without other
notice than such resolution.
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 any two 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 shall be given at least
ten (10) days previously thereto by written notice delivered personally or
mailed to each director at his business address, or by telegram. 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, such notice shall be deemed to be delivered when the telegram is
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delivered to the telegraph company. 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 by 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. 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 and agreement 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 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.
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 or a stated salary 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
his dissent shall be entered in the minutes of the meeting or unless he shall
file his 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
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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 a duly adopted resolution passed 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
shareholders the sale, lease or exchange of all or substantially all the
property and assets of the Company, (4) recommending to the shareholders the
voluntary dissolution of the Company, (5) declaring any dividend or authorizing
any distribution of any shares of capital stock of the Company.
Section 12. ADDITIONAL COMMITTEES. Such other committees may be
designated by a duly adopted resolution passed 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 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 shareholders. 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 his successor shall
have been duly elected and shall have qualified or until his death or until he
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
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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. He shall, when present, preside at all meetings
of the shareholders and of the Board of Directors. He 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 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 to him
by the President or the Board of Directors.
Section 7. THE SECRETARY. The Secretary shall: (a) keep the minutes of
the shareholders' 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 shareholder which shall be furnished to the
Secretary by such
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shareholder; (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 to him 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. He
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
to him 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 he 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
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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.
Section 3. FRACTIONAL SHARES. No fractional shares of stock of InaCom
shall be transferred, issued, or reissued.
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Section 4. CHARGE FOR CERTIFICATES. The corporation may invoke a charge
approximately equal to the cost of issuing a stock certificate for each
certificate of stock to be issued or reissued in excess of the minimum number of
certificates required, if the number of certificates requested by a stockholder
is deemed by the Secretary to be unreasonable.
ARTICLE VII. INDEMNIFICATION
Section 1. ACTIONS BY OTHERS. InaCom 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
InaCom) by reason of the fact that he is or was a director, officer, employee or
agent of InaCom, or is or was serving at the request of InaCom as a director,
officer, employee or agent of InaCom, or is or was serving at the request of
InaCom 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 him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of InaCom, and, with respect to any
criminal action or proceedings, had no reasonable cause to believe his 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 he reasonably believed to be in or not
opposed to the best interest of InaCom, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was criminal.
Section 2. ACTIONS BY OR IN THE RIGHT OF INACOM. InaCom 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 InaCom to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of InaCom, or is or was serving at the
request of InaCom, 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 him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of InaCom 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 InaCom unless and
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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 InaCom 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, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him 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 InaCom 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
he 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 InaCom 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
he is not entitled to be indemnified by InaCom 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. InaCom may purchase and maintain insurance on
behalf of any person who is or was a director,
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officer, employee or agent of InaCom, or is or was serving at the request of
InaCom as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not InaCom would have the power to
indemnify him 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 InaCom" shall include any service as a director, officer, employee or agent
of InaCom 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 he 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 InaCom" 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 InaCom and each
director, officer, employee, or agent of InaCom 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 InaCom arising hereunder.
ARTICLE VIII. FISCAL YEAR
The fiscal year of the corporation shall end on the last Saturday of
December of each year.
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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 shareholder 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.
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