EXHIBIT 3b
QMS, INC.
AMENDED AND RESTATED BY-LAWS
(in effect as of October 8, 1999)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the city of Wilmington,
county of New Castle, state of Delaware.
Section 2. The corporation may also have offices at such other places both
within and without the state of Delaware as the board of directors may from time
to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
may be held at such place, either within or without the State of Delaware, as
may be designated by or in the manner provided by these By-Laws.
Section 2. Annual meetings of stockholders shall be held within 120 days
after the end of each fiscal year of the corporation at such date, place and
time as shall be designated from time to time by the board of directors and as
shall be specified in the notice of the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare or cause to be prepared, at least ten days before
every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, either at a place within the city where the meeting
during ordinary business hours, for a period of at least ten days prior to the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the board of directors or by such officers of
the corporation as may be so authorized by the board of directors from time to
time.
Section 6. Written notice of a special meeting stating the place, date and
hour of the meeting and 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, to each stockholder entitled to vote at such meeting.
Section 7. The holders of a majority of the 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 statute, by the certificate of
incorporation or by another provision of these by-laws. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting
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from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. 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. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, the notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 8. If a quorum is present at any meeting of the stockholders, any
question brought before such meeting shall be decided by an affirmative vote of
the majority of the shares represented at the meeting and entitled to vote on
the subject matter, except as otherwise required by the certificate of
incorporation, the laws of Delaware or another provision of these by-laws.
Neither treasury shares, nor shares held by another corporation if a majority of
the shares entitled to vote for the election of directors of such other
corporation is held by the corporation, shall be voted at any meeting or counted
in determining the total number of outstanding shares at any given time. The
president, or other officer presiding at the meeting, shall determine whether
the vote upon any question before the meeting shall be by written ballot.
Section 9. Unless otherwise provided in the certificate of incorporation,
at every meeting of the stockholders, including meetings for the election of
directors, any stockholder having the right to vote shall be entitled to vote in
person or by proxy, but no proxy shall be voted on after three years from its
date, unless the proxy provides for a longer period. Each stockholder shall have
one vote for each share of stock having voting power and registered in his name
on the books of the corporation.
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Section 10. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any annual or special meeting of stockholders
of the corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
Section 11. Notwithstanding any other provision of these by-laws, the act
of the stockholders required to make, alter, amend, change, add to or repeal any
provision of the certificate of incorporation or these by-laws which is or which
is proposed to be inconsistent with Articles 9 or 10 of the certificate of
incorporation shall be governed by the provisions of Article 9 and 10,
respectively.
Section 12. Notwithstanding any other provision of these by-laws, a
Business Combination (as that term is defined in Article 10 of the certificate
of incorporation) shall be governed by the provisions of Article 10 of the
certificate of incorporation).
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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, the certificate of incorporation or these by-law; the board of
directors shall appoint all officers of the corporation and may, with or without
cause, remove any officer at any time; and the board of directors shall fix the
compensation of the president.
Section 2. The board of directors shall consist of not less than five and
not more than fifteen members, the precise number within such minimum and
maximum limits to be fixed from time to time by resolution of the board of
directors or by the affirmative vote of the holders of at least 75% of all
outstanding shares entitled to be voted in the election of directors, voting
together as a class. Directors need not be stockholders.
Section 3. Pursuant to Article 9 of the certificate of incorporation, the
board of directors shall be divided into three classes, designated as Class I,
Class II and Class III, each class to consist, as nearly as possible of one-
third of the total number of directors constituting the entire board of
directors. If the number of directors has changed pursuant to the provisions of
Section 2 of this Article, any increase or decrease shall be apportioned among
the classes so as to maintain the number of directors in each class as nearly
equal as possible, and any additional director of any Class elected to fill a
vacancy resulting from an increase in such a Class shall hold office for a term
that shall coincide with the remaining term of that Class, unless otherwise
required by law, but in no case shall a decrease in the number of directors in a
Class shorten the term of an incumbent director.
Section 4. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 5 of this Article, and each director
elected shall hold office until the date of the annual meeting of stockholders
upon which his term expires and until his successor is elected and qualified,
subject, however, to his prior death, resignation, retirement, disqualification
or removal from office.
Section 5. Any vacancy occurring in the board of directors, whether
created by the death, resignation, retirement, disqualification or removal from
office of a director or by an increase in the number of directorships pursuant
to Sections 2 or 3 of this Article, may be filled by the affirmative vote of a
majority of the directors then in office or by the sole remaining director. A
director elected to fill a vacancy under this Section 5 shall have the same
remaining term as that of his predecessor.
Section 6. Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of the certificate of in-
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corporation or the resolutions of the board of directors creating such class or
series, as the case may be, applicable thereto, and such directors so elected
shall not be divided into Classes pursuant to Section 3 of this Article unless
expressly provided by such terms.
Section 7. Except as may be prohibited by law, by the certificate of
incorporation or these by-laws, the board of directors shall have the right
(which, to the extent exercised, shall be exclusive) to establish the rights,
powers, duties, rules and procedures that from time to time shall govern the
board of directors, including without limitation, the vote required for any
action and the election of officers of the corporation by the board of
directors, and that from time to time shall affect the directors' powers to
manage the business and affairs of the corporation.
MEETINGS OF THE BOARD OF DIRECTORS
Section 8. Meetings of the board of directors, regular or special, may be
held either within or without the state of Delaware.
Section 9. Regular meetings of the board of directors or any committee
designated thereby may be held with or without notice, at such places and times
as shall be determined from time to time by the board.
Special meetings of the board or any committee designated thereby may, and
on the written request of any director, shall, be called by the president or by
the secretary on reasonable notice, but on no less than at least one hour's
oral, written or telephonic notice to each director or committee member, and
shall be held at such place and at such time as shall be stated in the call of
the meeting.
Section 10. At all meetings of the board of directors, a majority of
directors then in office shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute, the certificate of
incorporation, these by-laws or resolution of the board of directors pursuant to
Section 7 of this Article III of these by-laws. If a quorum shall not be
present at any meeting of the board of directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than an
announcement at the meeting, until a quorum shall be present.
Section 11. The first meeting of each newly elected board of directors
shall be held immediately following the close of the stockholders' annual
meeting, and at the place thereof or at such place and time as shall be
specified in a notice given as herein provided for special meetings of the board
of directors, or as shall be specified in a written waiver signed by all of the
directors. No notice of such meeting shall be necessary to the newly elected of
continuing directors in order legally to constitute the meeting, provided a
quorum shall be present.
Section 12. Members of the board of directors or any committee designated
thereby may participate in a meeting of the board or such committee by means of
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conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a meeting.
Section 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, 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 committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of the board or committee.
COMMITTEES OF DIRECTORS
Section 14. The board of directors may, by resolution passed by a majority
of the board, designate one or more committees, each committee to consist of one
or more of the directors of the corporation. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the board of directors.
Section 15. Any such committee, to the extent provided in the resolution
of the board of directors, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but, except as otherwise provided by
law, no such committee shall have the power or authority in reference to
amending the certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and, unless the
resolution or the certificate of incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend, to authorize
the issuance of stock or to adopt a certificate of ownership and merger.
Section 16. At all meetings of any committee of the board of directors, a
majority of the directors then serving as members of that committee shall
constitute a quorum for the transaction of business, and the act of a majority
of the committee members present at any committee meeting at which there is a
quorum shall be the act of the committee, except as may be otherwise
specifically provided by statute, the certificate of incorporation, another
provision of these by-laws or resolution of the board of directors pursuant to
Section 7 or 14 of this Article III.
Section 17. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
the meeting of the committee. If the board has not designated any or a
sufficient number of alternate committee members, the committee member or
members present at any committee meeting and not disqualified from voting,
regardless whether
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he or they constitute a quorum, may unanimously appoint a sufficient number of
other directors to act at the meeting in the place of each absent or
disqualified member of the committee.
Section 18. Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 19. The board of directors is authorized to fix the compensation
of directors. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer, agent
or otherwise, and receiving compensation therefor.
RESIGNATION AND REMOVAL OF DIRECTORS
Section 20. Any director or member of a committee designated by the board
of directors may resign at any time. Such resignation shall be made in writing
and shall take effect at the time specified therein, and if no time be so
specified, at the time of its receipt by the president or secretary. The
acceptance of a resignation shall not be necessary to make it effective.
Section 21. At a special meeting of the stockholders called expressly for
such purpose, any director or the entire board of directors may be removed only
for cause at any time by a vote of the holders of a majority of the shares of
common stock then entitled to vote at an election of directors, who may then
forthwith at such meeting proceed to elect a successor or successors for the
unexpired term of each such director removed.
INTERESTED DIRECTORS
Section 22. An interested director is one who is a party to a contract or
transaction with the corporation or who is an officer or director of, or has a
financial interest in, another corporation, partnership or association which is
a party to a contract or transaction with the corporation. Contracts and
transactions between the corporation and one or more interested directors or
officers shall not be void or voidable solely because the director or officer is
present at or participates in the meeting of the board or committee which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if
(i) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the board of directors
or the committee and the board or committee in good faith authorizes the
contract or transaction by the affirmative vote 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 relationship or interest and as to
the contract or transaction are disclosed or known to the stockholders entitled
to vote
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thereon, and the contract or transaction is specifically approved in good faith
by the vote of the stockholders; or
(iii) the contract or transaction is fair to the corporation as of the
time it is authorized, approved or ratified, by the board of directors,
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 IV
NOTICES
Section 1. Whenever, under the provisions of law or of the certificate of
incorporation or of these by-laws, notice is required to be given to any
director or stockholder, such notice may be given in writing, by mail, addressed
to such director or stockholder, at his address as it appears on the records of
the corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited in the United States
mail. Notice to directors may also be given by telegram, telephone or other
reasonable means of communication.
Section 2. Whenever any notice is required to be given under the
provisions of law or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or person entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice.
Section 3. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person attends the 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.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall consist of a president
and a secretary and such other officers as the board of directors may deem
proper, each of whom shall be elected from time to time by the board of
directors at such time and in such manner as the board may provide by
resolution.
Section 2. None of the officers, except the chairman of the board of
directors, if one be elected, need be directors.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled to
have a certificate, signed in the name of the corporation by, the chairman
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or vice chairman of the board of directors, or the president or a vice president
and the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the corporation, certifying the number of shares owned by him in
the corporation.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided by law, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 2. Any of or all of the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate or certificates, the board of directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to give the corporation a bond sufficient to indemnify it
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed, or with respect to
the issuance of the new certificate.
TRANSFER OF STOCK
Section 4. Transfers of stock shall be made on the books of the
corporation upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, or in the case of
a certificate alleged to have
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been lost, stolen or destroyed, upon compliance with the provisions of Section 3
of this Article.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distributing or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conductive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. Not later than 120 days after the close of each fiscal year, or
in any event prior to the next annual meeting of stockholders, the corporation
shall make available to all stockholders its annual report on the financial
condition and operations of the corporation for the fiscal year. Upon written
request, the corporation shall promptly mail without charge a copy of the most
recent annual report to any stockholder.
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CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall end on the Friday
closest to March 31, with a stub period ending March 31, 2000, and the next
fiscal year beginning April 1, 2000 and ending March 30, 2001. In future years,
the Company's fiscal year will end on the Friday closest to March 31.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION
Section 7. The corporation shall indemnify its officers, directors,
employees and agents to the extent permitted by the General Corporation Laws of
Delaware.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered, amended, changed, added to or
repealed and new by-laws may be adopted by the stockholders or by the board of
directors, when such power is conferred upon the board of directors by the
certificate of incorporation, at any regular meeting of the stockholders or of
the board of directors or at any special meeting of the stockholders or of the
board of directors if notice of such alteration, amendment, change, addition,
repeal or adoption be contained in the notice of such special meeting. If the
power to adopt, amend, change, add to or repeal by-laws is conferred upon the
board of directors by the certificate of incorporation it shall not divest or
limit the power of the stockholders to adopt, amend, change, add to or repeal
by-laws.
ARTICLE IX
EMERGENCY POWERS AND BY-LAWS
Section 1. The board of directors may adopt emergency by-laws, subject to
repeal or change by action of the stockholders, which shall, notwithstanding any
provision of law, the certificate of incorporation or these by-laws, be
operative during any emergency resulting from an attack on the United States or
on a locality in which the corporation conducts its business or customarily
holds meetings of its
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board of directors or its stockholders, or during any nuclear or atomic
disaster, or during the existence of any catastrophe, or other similar emergency
condition, as a result of which a quorum of the board of directors or a standing
committee thereof cannot readily be convened for action. The emergency by-laws
may make any provision that may be practical and necessary for the circumstances
of the emergency.
Section 2. The board of directors, either before or during any such
emergency, may provide, and from time to time modify, lines of succession in the
event that during such emergency any or all officers or agents of the
corporation shall for any reason be rendered incapable of discharging their
duties.
Section 3. The board of directors, either before or during any such
emergency, may, effective in the emergency, change the head office or designate
several alternative head offices or regional offices, or authorize the officers
so to do.
Section 4. To the extent not inconsistent with any emergency by-laws so
adopted, the by-laws of the corporation shall remain in effect during any
emergency and upon its termination the emergency by-laws shall cease to be
operative.
Section 5. To the extent required to constitute a quorum at any meeting of
the board of directors during such an emergency, the officers of the corporation
who are present shall, unless otherwise provided in emergency by-laws, be
deemed, in order of rank and within the same rank in order of seniority,
directors for such meeting.
Section 6. No officer, director or employee acting in accordance with any
emergency by-law shall be liable except for willful misconduct. No officer,
director, agent or employee shall be liable for any action taken by him in good
faith in such an emergency in furtherance of the ordinary business affairs of
the corporation even though not authorized by the by-laws then in effect.
Section 7. Unless otherwise provided in emergency by-laws, notice of any
meeting of the board of directors during any such emergency may be given only to
such of the directors as it may be feasible to reach at the time, and by such
means as may be feasible at the time, including publication, radio or
television.
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