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EXHIBIT 3.1
BY-LAWS
OF
OFFICE DEPOT, INC.
A DELAWARE CORPORATION
ARTICLE I
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OFFICES
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Section 1. Registered Office. The registered office of
the corporation in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware, County of New Castle. The
name of the corporation's registered agent at such address shall be The
Corporation Trust Company. The registered office and/or registered agent of
the corporation may be changed from time to time by resolution of the Board of
Directors.
Section 2. Other Offices. 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
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MEETINGS OF STOCKHOLDERS
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Section 1. Annual Meeting. An annual meeting of the
stockholders shall be held each year within one hundred sixty (160) days after
the close of the immediately preceding fiscal year of the corporation for the
purpose of electing directors and conducting such other proper business as may
come before the meeting. The date, time and place of the annual meeting shall
be determined by the Chairman of the Board or the Chief Executive Officer of
the corporation; provided, that if the Chairman of the Board or the Chief
Executive Officer does not act, the Board of Directors shall determine the
date, time and place of such meeting.
Section 2. Special Meetings. Special meetings of
stockholders may be called for any purpose and may be held at such time and
place as shall be stated in a notice of meeting or in a duly executed waiver of
notice thereof. Such meetings may be
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called at any time by the Chairman of the Board, the Chief Executive Officer
or, if directed by resolution of the Board of Directors, the Secretary.
Section 3. Place of Meetings. Annual and special
meetings may be held within or without the State of Delaware. If no
designation is made, the place of meeting shall be the principal executive
office of the corporation.
Section 4. Notice. Whenever stockholders are required
or permitted to take action at a meeting, written or printed notice stating the
place, date, time, and, in the case of special meetings, the purpose or
purposes, of such meeting, shall be given to each stockholder entitled to vote
at such meeting not less than 10 nor more than 60 days before the date of the
meeting. All such notices shall be delivered, either personally or by mail, by
or at the direction of the Chairman of the Board, the Chief Executive Officer
or the Secretary, and if mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, postage prepaid, addressed to the
stockholder at his, her or its address as the same appears on the records of
the corporation. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, unless such person attends 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.
Section 5. Stockholder Proposals. At an annual meeting
of stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been brought before the annual meeting, (i)
by or at the direction of the Board of Directors or (ii) by any stockholder of
the corporation who complies with the requirements of this Article II, Section
5 and as shall otherwise be proper subjects for stockholder action and shall be
properly introduced at the meeting. For a proposal to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
timely advance notice thereof in writing to the Secretary of the corporation.
To be timely in connection with an annual meeting, a stockholder's notice must
be delivered to, or mailed and received at, the principal executive offices of
the corporation not less than 90 days prior to the date of the previous year's
annual meeting; provided, however, that if the date of an annual meeting
differs from that of the previous year by more than 30 days, notice by the
stockholder, to be timely, must be so delivered or received not later than
seven days after notice of such meeting has been given (or such greater period
of time as is set forth in such notice). To be timely in connection with a
special meeting, a stockholder's notice must be delivered to, or mailed and
received at, the principal executive offices of the corporation not less than
seven days after notice of such
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meeting has been given (or such greater period of time as is set forth in such
notice). A stockholder's notice to the Secretary shall set forth, as to each
matter the stockholder proposes to bring before the meeting, (i) a description
of the proposal desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (ii) the name and address, as they
appear on the corporation's books, of the stockholder proposing such business
and any other stockholders known by such stockholder to be supporting such
proposal, (iii) the class and number of shares of the corporation's stock which
are beneficially owned by the stockholder on the date of such notice, the dates
upon which such shares were acquired and documentary support for such
beneficial ownership claim, (iv) any financial interest of the stockholder in
such proposal, and (v) if such proposal includes the nomination of directors,
the information required by Article III, Section 3. The presiding officer of
the meeting of stockholders shall determine whether the requirements of this
Article II, Section 5 have been met with respect to any stockholder proposal.
If the presiding officer determines that a stockholder proposal was not made in
accordance with the terms of this Article II, Section 5, he or she shall notify
the proposing stockholder of such determination within a reasonable period of
time prior to the meeting and shall so declare at the meeting, and any such
proposal shall not be acted upon at the meeting. At a special meeting of
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as (i) shall have been set forth in the notice relating to
such meeting required by Article II, Section 4 or as shall constitute matters
incident to the conduct of the meeting as the presiding officer of the meeting
shall determine to be appropriate or (ii) as shall have been brought before
such special meeting by any stockholder of the corporation who complies with
the requirements of this Article II, Section 5, as shall otherwise be proper
subjects for stockholder action at such special meeting and as shall be
properly introduced at such meeting.
Section 6. Stockholders List. The officer having charge
of the stock ledger of the corporation shall make, at least 10 days before
every meeting of the stockholders, a complete list of the stockholders entitled
to vote at such meeting arranged in alphabetical order, showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
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Section 7. Quorum. The holders of a majority of the
outstanding shares of common stock present in person or represented by proxy
shall constitute a quorum at all meetings of the stockholders, except as
otherwise provided by statute or by the certificate of incorporation. If a
quorum is not present, the holders of a majority of the shares present in
person or represented by proxy at the meeting and entitled to vote at the
meeting may adjourn the meeting to another time and/or place. When a quorum is
once present to commence a meeting of stockholders, it shall not be broken by
the subsequent withdrawal of the stockholders or their proxies.
Section 8. Adjourned Meetings. When a meeting is
adjourned to another time and place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact
any business which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 9. Voting by Stockholders on Matters Other Than
the Election of Directors. With respect to any matters as to which no other
voting requirement is specified by the General Corporation Law of the State of
Delaware, the certificate of incorporation of the corporation or these by-laws,
the affirmative vote required for stockholder action shall be that of a
majority of the shares present in person or represented by proxy (as counted
for purposes of determining the existence of a quorum) and entitled to vote at
a meeting of stockholders at which a quorum is present. In the case of a
matter submitted for a vote of the stockholders as to which a stockholder
approval requirement is applicable under the stockholder approval policy of the
New York Stock Exchange, the requirements of Rule 16b-3 under the Securities
Exchange Act of 1934 (the Exchange Act) or any provision of the Internal
Revenue Code of 1986 (the Code), including Code Section 162(m), in each case
for which no higher voting requirement is specified by the General Corporation
Law of the State of Delaware, the certificate of incorporation of the
corporation or these by-laws, the vote required for approval shall be the
requisite vote specified in such stockholder approval policy, Rule 16b-3 or
such Code provision, as the case may be (or the highest such requirement if
more than one is applicable). For the approval of the appointment of
independent public accountants (if submitted for a vote of the stockholders),
the vote required for approval shall be a majority of the votes cast on the
matter.
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Section 10. Voting by Stockholders in the Election of
Directors. Unless otherwise provided in the certificate of incorporation of
the corporation, directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote in the election of directors at a meeting of stockholders at which a
quorum is present.
Section 11. Voting Rights. Except as otherwise provided
by the General Corporation Law of the State of Delaware or by the certificate
of incorporation of the corporation or any amendments thereto and subject to
Section 3 of Article VI hereof, every stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
common stock held by such stockholder.
Section 12. Proxies. Each stockholder entitled to vote
at a meeting of stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons to
act for him or her by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law
to support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the stock
itself or an interest in the corporation generally. Any proxy is suspended
when the person executing the proxy is present at a meeting of stockholders and
elects to vote, except that when such proxy is coupled with an interest and the
fact of the interest appears on the face of the proxy, the agent named in the
proxy shall have all voting and other rights referred to in the proxy,
notwithstanding the presence of the person executing the proxy. At each
meeting of the stockholders, and before any voting commences, all proxies filed
at or before the meeting shall be submitted to and examined by the Secretary or
a person designated by the Secretary, and no shares may be represented or voted
under a proxy that has been found to be invalid or irregular.
Section 13. Action by Written Consent. 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 or consents in writing, setting forth the action so taken
and bearing the dates of signature of the stockholders who signed the consent
or consents, shall be signed by the holders of outstanding stock having not
less than the minimum number of votes that would be
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necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
corporation by delivery to its registered office in the state of Delaware, or
the corporation's principal place of business, or an officer or agent of the
corporation having custody of the book or books in which proceedings of
meetings of the stockholders are recorded. Delivery made to the corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested, provided, however, that no consent or consents delivered by
certified or registered mail shall be deemed delivered until received at the
registered office. All consents properly delivered in accordance with this
section shall be deemed to be recorded when so delivered. No written consent
shall be effective to take the corporate action referred to therein unless,
within 60 days of the earliest dated consent delivered to the corporation as
required by this section, written consents signed by the holders of a
sufficient number of shares to take such corporate action are so recorded.
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. Any action taken pursuant to such written consent or
consents of the stockholders shall have the same force and effect as if taken
by the stockholders at a meeting thereof.
ARTICLE III
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DIRECTORS
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Section 1. General Powers. The business and affairs of
the corporation shall be managed by or under the direction of the Board of
Directors.
Section 2. Number, Election and Term of Office. The
number of directors which shall constitute the Board of Directors shall be
established from time to time by resolution of the Board of Directors. The
Board of Directors shall be elected at the annual meeting of the stockholders
and each director elected shall hold office until the next annual meeting of
stockholders or until a successor is duly elected and qualified or until his or
her earlier resignation or removal as hereinafter provided.
Section 3. Nomination of Directors. Subject to such
rights of the holders of one or more outstanding series of preferred stock of
the corporation to elect one or more directors in case of arrearages in the
payment of dividends as shall be prescribed in the certificate of incorporation
of the corporation or in the resolutions of the Board of Directors providing
for the establishment of any such series, only persons who are nominated in
accordance with the procedures set forth in this Article III, Section 3 shall
be eligible for election as, and to serve as,
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directors. Nominations of persons for election to the Board of Directors may
be made at a meeting of the stockholders at which directors are to be elected
(i) by or at the direction of the Board of Directors or (ii) by any stockholder
of the corporation entitled to vote at such meeting in the election of
directors who complies with the requirements of this Article III, Section 3.
Such nominations, other than those made by or at the direction of the Board of
Directors, shall be preceded by timely advance notice in writing to the
Secretary of the corporation. To be timely in connection with an annual
meeting, a stockholder's notice shall be delivered to, or mailed and received
at, the principal executive offices of the corporation not less than 90 days
prior to the date of the previous year's annual meeting; provided, however,
that if the date of an annual meeting differs from that of the previous year by
more than 30 days, notice by the stockholder, to be timely, must be so
delivered or received not later than seven days after notice of such meeting
has been given (or such greater period of time as is set forth in such notice).
To be timely in connection with a special meeting, a stockholder's notice must
be delivered to, or mailed and received at, the principal executive offices of
the corporation not less than seven days after notice of such meeting has been
given (or such greater period of time as is set forth in such notice). A
stockholder's notice to the Secretary shall set forth (x) as to each person
whom the stockholder proposes to nominate for election or re-election as a
director, (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
number of shares of each class of capital stock of the corporation beneficially
owned by such person, (iv) the written consent of such person to having such
person's name placed in nomination at the meeting and to serve as a director if
elected,, and (v) any other information required by Regulation 14(a)-8 under
the Securities Exchange Act of 1934 or any replacement thereof and (y) as to
the stockholder giving the notice, (i) the name and address, as they appear on
the corporation's books, of such stockholder and (ii) the number of shares of
each class of voting stock of the corporation which are then beneficially owned
by such stockholder, the dates upon which such shares were acquired and
documentary support for such beneficial ownership claim. The presiding officer
of the meeting of stockholders shall determine whether the requirements of
Article III, Section 3 have been met with respect to any nomination or intended
nomination. If the presiding officer determines that any nomination was not
made in accordance with the requirements of this Article III, Section 3, he
shall notify the proposing stockholder of such determination within a
reasonable period of time prior to the meeting and shall so declare at the
meeting, and the defective nomination shall be disregarded.
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Section 4. Removal and Resignation. Any director or the
entire Board of Directors may be removed at any time, with or without cause, by
the holders of a majority of the shares then entitled to vote at an election of
directors, except as otherwise provided by law. Any director may resign at any
time upon written notice to the corporation. Such written resignation shall
take effect at the time specified therein, and if no time be specified, at the
time of its receipt by the Chairman of the Board, Chief Executive Officer or
the Secretary. The acceptance of a resignation shall not be necessary to make
it effective.
Section 5. 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, even if less than
a quorum, or by a sole remaining director. Each director so chosen shall hold
office until the next annual meeting of stockholders or until a successor is
duly elected and qualified or until his or her earlier resignation or removal
as herein provided.
Section 6. Annual Meetings. The annual meeting of each
newly elected 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
stockholders.
Section 7. Other Meetings and Notice. Regular meetings,
other than the annual meeting, of the Board of Directors may be held within or
without the State of Delaware and without notice at such time and at such place
as shall from time to time be determined by resolution of the Board of
Directors. Special meetings of the Board of Directors may be called (i) by the
Chairman of the Board or the Chief Executive Officer on at least 24 hours prior
notice to each director, either personally, by telephone, by mail, by telegraph
or by telecopy or (ii) upon the request of any director, by the Secretary on at
least 72 hours such prior notice.
Section 8. Chairman of the Board. The Chairman of the
Board shall be appointed by resolution of the Board of Directors and shall
preside at all meetings of the Board of Directors and stockholders.
Section 9. Quorum, Required Vote and Adjournment. A
majority of the total number of directors shall constitute a quorum for the
transaction of business, except as otherwise provided by statute or by the
certificate of incorporation. The vote of a majority of directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors. 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
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time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 10. Committees. The Board of Directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation, which to the extent provided in such resolution or these By-laws
shall have and may exercise the powers of the Board of Directors in the
management and affairs of the corporation, except as otherwise limited by law.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Such committee or committees shall have such name or
names and have as many members as may be determined from time to time by
resolution adopted by the Board of Directors. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 11. Committee Rules. Each committee of the Board
of Directors may fix its own rules of procedure and shall hold its meetings as
provided by such rules, except as may otherwise be provided by a resolution of
the Board of Directors designating such committee. Unless otherwise provided
in such a resolution, the presence of at least a majority of the members of the
committee shall be necessary to constitute a quorum. In the event that a
member and that member's alternate, if alternates are designated by the Board
of Directors as provided in Section 8 of this Article III, of such committee is
or are absent or disqualified, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member.
Section 12. Executive Committee. The Executive Committee
shall consist of members of the Board of Directors who shall from time to time
be appointed to such committee by resolution of the Board of Directors. To the
extent provided in the resolution establishing the Executive Committee or any
subsequent resolution of the Board of Directors, the Executive Committee shall
have and may exercise all of the authority of the Board of Directors in the
management of the corporation, except that the committee shall have no
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, amending the By-laws of the
corporation, electing or removing directors or officers of the
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corporation or members of the Executive Committee, declaring dividends or
amending, altering, or repealing any resolution of the Board of Directors
which, by its terms, provides that it shall not be amended, altered or repealed
by the Executive Committee.
Section 13. Audit Committee. The Audit Committee shall
consist of members of the Board of Directors who shall from time to time be
appointed to such committee by resolution of the Board of Directors. The Audit
Committee shall recommend to the Board of Directors the appointment of the
corporation's independent accountants. The Audit Committee shall meet with the
independent auditors to discuss the scope of the audit, any nonaudit related
assignments, fees, the independence of the accountants, the results of the
audit and the effectiveness of the corporation's internal accounting controls,
which discussions the Audit Committee shall then report to the Board of
Directors. The Audit Committee shall be accessible to the independent
accountants, with or without management's knowledge, to discuss auditing and
any other accounting matters.
Section 14. Compensation Committee. The Compensation
Committee shall consist of members of the Board of Directors who shall from
time to time be appointed to such committee by resolution of the Board of
Directors. The Compensation Committee shall recommend action by the Board of
Directors regarding the salaries and incentive compensation of elected officers
of the corporation. The Compensation Committee shall also review the
compensation of certain other principal management employees and administer the
employee benefit plans of the corporation.
Section 15. Nominating Committee. The Nominating
Committee shall consist of members of the Board of Directors who shall from
time to time be appointed to such committee by resolution of the Board of
Directors. The Nominating Committee shall evaluate the performance of
incumbent directors, consider nominees recommended by management or
stockholders of the corporation, and develop its recommendations to be
presented to the Board of Directors for their approval.
Section 16. Stock Option Plan Committee. The Board of
Directors may appoint a Stock Option Plan Committee comprised of two or more
directors, each of whom meet the qualifications for disinterested directors as
set forth under Rule 16b-3 under the Exchange Act and for outside directors as
set forth under Section 162(m) of the Code. Unless otherwise directed by
resolution of the Board of Directors, the Stock Option Plan Committee shall
administer the stock option plans of the corporation. If no Stock Option Plan
Committee is appointed, the Compensation Committee shall perform the functions
of the Stock Option Plan Committee, in which case the Compensation Committee
shall be comprised of two or
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more directors, each of whom meet the qualifications for disinterested
directors as set forth under Rule 16b-3 and for outside directors as set forth
under Section 162(m).
Section 17. Use of Communications Equipment. Members of
the Board of Directors or any committee thereof may participate in and act at
any meeting of the Board of Directors or committee through the use of a
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
the meeting pursuant to this section shall constitute attendance and presence
in person at the meeting of the person or persons so participating.
Section 18. Waiver of Notice and Presumption of Assent.
Any member of the Board of Directors or any committee thereof who is present at
a meeting shall be conclusively presumed to have waived notice of such meeting,
unless such member attends 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. Such member shall be conclusively presumed
to have assented to any action taken unless his or her dissent shall be entered
in the minutes of the meeting or unless his or her written dissent to such
action shall be filed with the person acting as the Secretary of the meeting
before the adjournment thereof or shall be forwarded by registered mail to the
Secretary of the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to any member who voted in favor of such
action.
Section 19. Action by Written Consent. Unless otherwise
restricted by the certificate of incorporation, 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 proceedings of the Board of Directors
or committee.
Section 20. Compensation. Unless otherwise restricted by
the certificate of incorporation, the Board of Directors shall have the
authority to fix the compensation of directors by written resolution. Nothing
herein shall be construed to preclude any director from serving the corporation
in any other capacity as an officer, employee, agent or otherwise, and
receiving compensation therefor.
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ARTICLE IV
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OFFICERS
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Section 1. Number. The officers of the corporation
shall be elected by the Board of Directors and shall consist of a Chief
Executive Officer, a President, a Chief Financial Officer, one or more
Vice-Presidents, a Treasurer, a Secretary and such other officers and assistant
officers as may be deemed necessary or desirable by the Board of Directors.
Any number of offices may be held by the same person, except that neither the
Chairman of the Board nor the President shall also hold the office of either
Treasurer or Secretary. In its discretion, the Board of Directors may choose
not to fill any office for any period as it may deem advisable, except that the
office of Secretary shall be filled as expeditiously as possible.
Section 2. Election and Term of Office. The officers of
the corporation shall be elected annually by the Board of Directors at its
first meeting held after each annual meeting of stockholders or as soon
thereafter as conveniently may be. Vacancies may be filled or new offices
created and filled at any meeting of the Board of Directors. Each officer
shall hold office until the next annual meeting of the Board of Directors or
until a successor is duly elected and qualified or until his or her earlier
resignation or removal as herein provided.
Section 3. Removal. Any officer or agent elected 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.
Section 4. Vacancies. Any vacancy occurring in any
office because of death, resignation, removal, disqualification or otherwise,
may be filled by resolution of the Board of Directors.
Section 5. Compensation. Compensation of all officers
shall be fixed by the Board of Directors, and no officer shall be prevented
from receiving such compensation by virtue of his or her also being a director
of the corporation.
Section 6. Chief Executive Officer. The Chief Executive
Officer shall be the chief executive officer of the corporation and shall have
the powers and perform the duties incident to that position. Subject to the
powers of the Board of Directors, the Chief Executive Officer shall have
general and active charge of the entire business and affairs of the
corporation, and shall be its chief policy making officer. The Chief Executive
Officer shall have such other powers and perform such other duties as the Board
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of Directors or these By-laws may, from time to time, prescribe. Whenever the
office of President is vacant or the President is unable to serve, by reason of
sickness, absence or otherwise, the Chief Executive Officer shall perform all
the duties and responsibilities and exercise all the powers of the President.
Section 7. The President. The President shall be the
chief operating officer and, subject to the powers of the Board of Directors
and the Chief Executive Officer, shall have general charge of the business,
affairs and property of the corporation, and control over its officers, agents
and employees, and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation. The President shall have such other powers and perform such
other duties as the Board of Directors, the Chief Executive Officer, or these
By-laws may, from time to time, prescribe.
Section 8. Chief Financial Officer. The Chief Financial
Officer of the corporation shall, under the direction of the Chief Executive
Officer, be responsible for all financial and accounting matters and for the
direction of the office of Treasurer. The Chief Financial Officer shall have
such other powers and perform such other duties as the Board of Directors, the
Chief Executive Officer, the President, or these By-laws may, from time to
time, prescribe. If no Treasurer is elected, the Chief Financial Officer shall
perform all the duties and responsibilities and exercise all of the powers of
the Treasurer.
Section 9. Vice-Presidents. The Vice-President, or if
there shall be more than one, the Vice-Presidents, shall perform such other
duties and have such other powers as the Board of Directors, the Chief
Executive Officer, the President, or these By-laws may, from time to time,
prescribe.
Section 10. The Treasurer and Assistant Treasurer. The
Treasurer shall have the custody of the corporate funds and securities, shall
keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation, shall deposit all monies and other valuable
effects in the name and to the credit of the corporation as may be ordered by
the Board of Directors, shall cause the funds of the corporation to be
disbursed when such disbursements have been duly authorized, taking proper
vouchers for such disbursements, and shall render to the President and the
Board of Directors, at its regular meeting or when the Board of Directors so
requires, an account of the Treasurer's actions. The Treasurer
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shall have such other powers and perform such other duties as the Board of
Directors, the Chief Executive Officer, the President, or these By-laws may,
from time to time, prescribe. If required by the Board of Directors, the
Treasurer shall give the corporation a bond (which shall be rendered every six
years) in such sums and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of the
office of Treasurer and for the restoration to the corporation, in case of
death, resignation, retirement, or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in the possession or under
the control of the Treasurer belonging to the corporation. The Assistant
Treasurer, or if there shall be more than one, the Assistant Treasurers in the
order determined by the Board of Directors, shall in the absence or disability
of the Treasurer, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board of
Directors, the Chief Executive Officer, the President, or these By-laws may,
from time to time, prescribe.
Section 11. The Secretary and Assistant Secretaries. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of the stockholders and record all the proceedings of the meetings in a book or
books to be kept for that purpose. Under the President's supervision, the
Secretary shall give, or cause to be given, all notices required to be given by
these By-laws or by law; shall have such powers and perform such duties as the
Board of Directors, the Chief Executive Officer, the President, or these
By-laws may, from time to time, prescribe and shall have custody of the
corporate seal of the corporation. The Secretary, or an Assistant Secretary,
shall have authority to affix the corporate seal to any instrument requiring it
and when so affixed, it may be attested by his or her signature or by the
signature of such Secretary or Assistant Secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the
corporation and to attest the affixing by his or her signature. The Assistant
Secretary, or if there be more than one, the Assistant Secretaries in the order
determined by the Board of Directors, shall, in the absence or disability of
the Secretary, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the Board of
Directors, the Chief Executive Officer, the President, or these By-laws may,
from time to time, prescribe.
Section 12. Other Officers, Assistant Officers and
Agents. Officers, assistant officers and agents, if any, other than those
whose duties are provided for in these By-laws, shall have such authority and
perform such duties as may from time to time be prescribed by resolution of the
Board of Directors.
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Section 13. Absence or Disability of Officers. In the
case of the absence or disability of any officer of the corporation and of any
person hereby authorized to act in such officer's place during such officer's
absence or disability, the Board of Directors may by resolution delegate the
powers and duties of such officer to any other officer or to any director, or
to any other person whom it may select.
ARTICLE V
---------
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
-------------------------------------------------
Section 1. Coverage. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(proceeding), by reason of the fact that he or she is or was a director or
officer of the corporation (which term shall include any predecessor
corporation of the corporation) or is or was serving at the request of the
corporation as a director, officer, employee, fiduciary or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans (indemnitee), whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee, fiduciary or agent or in any other capacity while
serving as a director, officer, employee, fiduciary or agent, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the corporation to provide
broader indemnification rights than said law permitted the corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall continue as
to an indemnitee who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided however, that, except as provided in Section 2 of this
Article V with respect to proceedings to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) which has been initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Directors. The
right to indemnification conferred in this Article V shall be a contract right
and, subject to Section 2 hereof, shall include the right to be paid by the
corporation the expenses incurred in defending any such proceeding in advance
of its final disposition; provided, however, that if the General Corporation
Law of the State of
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Delaware requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) in advance of the
final disposition of a proceeding, shall be made only upon delivery to the
corporation of an undertaking, by or on behalf of such indemnitee, to repay all
amounts so advanced if it ultimately is determined by final judicial decision
from which there is no further right to appeal that such indemnitee is not
entitled to be indemnified for such expenses under this Article V or otherwise.
Section 2. Claims. Any indemnification of a director or
officer of the corporation or advance of expenses under Section 1 of this
Article V shall be made promptly, and in any event within 30 days, upon the
written request of the director or officer. If a determination by the
corporation that the director or officer is entitled to indemnification
pursuant to this Article V is required, and the corporation fails to respond
within 30 days to a written request for indemnity, the corporation shall be
deemed to have approved the request. If the corporation denies a written
request for indemnification or advancing of expenses, in whole or in part, or
if payment in full pursuant to such request is not made within 30 days, the
right to indemnification or advances as granted by this Article V shall be
enforceable by the director or officer in any court of competent jurisdiction.
Such person's costs and expenses incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part, in any
such action shall also be indemnified by the corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the corporation to indemnify the claimant for the amount claimed, but the
burden of such defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination
by the corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
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Section 3. Rights Not Exclusive. The rights conferred
on any person by Sections 1 and 2 of this Article V shall not be exclusive of
any other rights which such person may have or hereafter acquire under these
By-laws, any statute, the certificate of incorporation, any agreement, any vote
of stockholders or disinterested directors or otherwise.
Section 4. Employees and Agents. Persons who are not
covered by the foregoing provisions of this Article V and who are or were
employees or agents of the corporation may be indemnified and may have their
expenses paid to the extent and subject to such terms and conditions as may be
authorized at any time or from time to time by the Board of Directors.
Section 5. Insurance. The corporation may purchase and
maintain insurance on its own behalf and on behalf of any person who is or was
a director, officer, employee, fiduciary or agent of the corporation or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by
him or her and incurred by him or her in any such capacity, whether or not the
corporation would have the power to indemnify such person against such
liability under this Article V.
Section 6. Contract Right. The provisions of this
Article V shall be deemed to be a contract right between the corporation and
each director or officer who serves in any such capacity at any time while this
Article V and the relevant provisions of the General Corporation Law of the
State of Delaware or other applicable law are in effect, and any repeal or
modification of this Article V or any such law shall not affect any rights or
obligations then existing with respect to any state of facts or proceeding then
existing.
Section 7. Merger or Consolidation. For purposes of
this Article V, references to the corporation shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was
a director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Article
V with respect to the resulting or surviving corporation as he or she would
have with respect to such constituent corporation if its separate existence had
continued.
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ARTICLE VI
----------
CERTIFICATES OF STOCK
---------------------
Section 1. Form. Every holder of stock in the
corporation shall be entitled to have a certificate signed by or in the name of
the corporation by the Chairman of the Board, the President or a Vice-President
and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the corporation, certifying the number of shares owned by such
holder in the corporation. If such a certificate is countersigned (1) by a
transfer agent or an assistant transfer agent other than the corporation or its
employee or (2) by a registrar, other than the corporation or its employee, the
signature of any such Chairman of the Board, President, Vice-President,
Treasurer, Assistant Treasurer, Secretary, or Assistant Secretary may be
facsimiles. In case any officer or officers who have signed, or whose facsimile
signature or signatures have been used on, any such certificate or certificates
shall cease to be such officer or officers of the corporation whether because
of death, resignation or otherwise before such certificate or certificates have
been delivered by the corporation, such certificate or certificates may
nevertheless be issued and delivered as though the person or persons who signed
such certificate or certificates or whose facsimile signature or signatures
have been used thereon had not ceased to be such officer or officers of the
corporation. All certificates for shares shall be consecutively numbered or
otherwise identified. The name 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 books of the corporation. Shares of stock of the corporation
shall only be transferred on the books of the corporation by the holder of
record thereof or by such holder's attorney duly authorized in writing, upon
surrender to the corporation of the certificate or certificates for such shares
endorsed by the appropriate person or persons, with such evidence of the
authenticity of such endorsement, transfer, authorization and other matters as
the corporation may reasonably require, and accompanied by all necessary stock
transfer stamps. In that event, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate or certificates and record the transaction on its books. The Board
of Directors may appoint a bank or trust company organized under the laws of
the United States or any state thereof to act as its transfer agent or
registrar or both in connection with the transfer of any class or series of
securities of the corporation.
Section 2. Lost Certificates. The Board of Directors
may direct a new certificate or certificates to be issued in place of any
certificate or certificates previously issued by the corporation alleged to
have been lost, stolen or destroyed upon the
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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 or her legal
representative, to indemnify the corporation or to give the corporation a bond
sufficient to indemnify the corporation against any claim that may be made
against the corporation on account of the loss, theft or destruction of any
such certificate or the issuance of such new certificate.
Section 3. Fixing a Record Date for Stockholder
Meetings. 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, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record date shall not be
more than 60 nor less than 10 days before the date of such meeting. If no
record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be the close of business on the next day preceding the day on which
notice is given, or if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. 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.
Section 4. Fixing a Record Date for Action by Written
Consent. In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of
Directors is required by statute, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the corporation's registered
office shall be by hand or by certified or
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registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required
by statute, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the Board of Directors adopts the resolution taking such
prior action.
Section 5. Fixing a Record Date for Other Purposes. In
order that the corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment or any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purposes of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
Section 6. Registered Stockholders. Prior to the
surrender to the corporation of the certificate or certificates for a share or
shares of stock with a request to record the transfer of such share or shares,
the corporation may treat the registered owner as the person entitled to
receive dividends, to vote, to receive notifications, and otherwise to exercise
all the rights and powers of an owner. The corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof.
ARTICLE VII
-----------
GENERAL PROVISIONS
------------------
Section 1. Dividends. 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. 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
any other purpose and the directors may
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Section 8. Inspection of Books and Records. Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during
the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean
any purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be
directed to the corporation at its registered office in the State of Delaware
or at its principal place of business.
Section 9. Section Headings. Section headings in these
By-laws are for convenience of reference only and shall not be given any
substantive effect in limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that
any provision of these By-laws is or becomes inconsistent with any provision of
the certificate of incorporation, the General Corporation Law of the State of
Delaware or any other applicable law, the provision of these By-laws shall not
be given any effect to the extent of such inconsistency but shall otherwise be
given full force and effect.
Section 11. Election out of Section 203. The corporation
expressly elects not to be governed by Section 203 of the General Corporation
Law of Delaware. The By-law amendment adopting this provision shall not be
further amended by the Board of Directors of the corporation.
ARTICLE VIII
------------
AMENDMENTS
----------
These By-laws may be amended, altered, or repealed and new By-laws
adopted at any meeting of the Board of Directors by a majority vote. The fact
that the power to adopt, amend, alter, or repeal the By-laws has been conferred
upon the Board of Directors shall not divest the stockholders of the same
powers.
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Section 8. Inspection of Books and Records. Any
stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during
the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean
any purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent shall be the person who seeks
the right to inspection, the demand under oath shall be accompanied by a power
of attorney or such other writing which authorizes the attorney or other agent
to so act on behalf of the stockholder. The demand under oath shall be
directed to the corporation at its registered office in the State of Delaware
or at its principal place of business.
Section 9. Section Headings. Section headings in these
By-laws are for convenience of reference only and shall not be given any
substantive effect in limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that
any provision of these By-laws is or becomes inconsistent with any provision of
the certificate of incorporation, the General Corporation Law of the State of
Delaware or any other applicable law, the provision of these By-laws shall not
be given any effect to the extent of such inconsistency but shall otherwise be
given full force and effect.
Section 11. Election out of Section 203. The corporation
expressly elects not to be governed by Section 203 of the General Corporation
Law of Delaware. The By-law amendment adopting this provision shall not be
further amended by the Board of Directors of the corporation.
ARTICLE VIII
------------
AMENDMENTS
----------
These By-laws may be amended, altered, or repealed and new By-laws
adopted at any meeting of the Board of Directors by a majority vote. The fact
that the power to adopt, amend, alter, or repeal the By-laws has been conferred
upon the Board of Directors shall not divest the stockholders of the same
powers.
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