BY - LAWS
of
DATA ARCHIVE SERVICES, INC.
(a Delaware Corporation)
DATA ARCHIVE SERVICES, INC.
(a Delaware Corporation)
BY-LAWS
TABLE OF CONTENTS
ARTICLE I OFFICES...........................................................1
SECTION 1. Registered Office.....................................1
ARTICLE II SEAL.............................................................1
ARTICLE III MEETING OF STOCKHOLDERS.........................................1
SECTION 1. Place of Meeting......................................1
SECTION 3. Special Meetings......................................1
SECTION 4. Notice................................................2
SECTION 5. Quorum and Adjournments...............................2
SECTION 6. Votes; Proxies........................................3
SECTION 7. Organization..........................................4
SECTION 8. Consent of Stockholders in Lieu of Meeting............4
ARTICLE IV DIRECTORS........................................................5
SECTION 1. Number................................................5
SECTION 2. Term of Office........................................5
SECTION 3. Vacancies.............................................5
SECTION 4. Removal by Stockholders...............................6
SECTION 5. Meetings..............................................6
SECTION 6. Votes.................................................6
SECTION 7. Quorum and Adjournment................................7
SECTION 8. Compensation..........................................7
SECTION 9. Action By Consent of Directors........................7
ARTICLE V COMMITTEES OF DIRECTORS...........................................7
SECTION 1. Executive Committee...................................7
SECTION 2. Audit Committee.......................................8
SECTION 3. Other Committees......................................9
SECTION 4. Term of Office.......................................10
ARTICLE VI OFFICERS........................................................10
SECTION 1. Officers.............................................10
SECTION 2. Vacancies............................................11
SECTION 3. Chairman of the Board................................11
SECTION 4. President............................................11
SECTION 5. Executive Vice Presidents and Vice Presidents
.....................................................11
SECTION 6. Secretary............................................11
SECTION 7. Assistant Secretaries................................11
SECTION 8. Treasurer............................................12
SECTION 9. Assistant Treasurers.................................12
SECTION 10. Controller...........................................12
SECTION 11. Assistant Controllers................................12
SECTION 12. Subordinate Officers.................................13
SECTION 13. Compensation.........................................13
SECTION 14. Removal..............................................13
SECTION 15. Bonds................................................13
ARTICLE VII CERTIFICATES OF STOCK..........................................13
SECTION 1. Form and Execution of Certificates...................13
SECTION 2. Transfer of Shares...................................14
SECTION 3. Closing of Transfer Books............................15
SECTION 4. Fixing Date for Determination of Stockholders
of Record............................................15
SECTION 5. Lost or Destroyed Certificates.......................16
SECTION 6. Uncertificated Shares................................17
ARTICLE VIII EXECUTION OF DOCUMENTS........................................17
SECTION 1. Execution of Checks, Notes, etc......................17
SECTION 2. Execution of Contracts, Assignments, etc.............17
SECTION 3. Execution of Proxies.................................17
ARTICLE IX INSPECTION OF BOOKS.............................................17
ARTICLE X FISCAL YEAR......................................................18
ARTICLE XI AMENDMENTS......................................................18
ARTICLE XII INDEMNIFICATION................................................18
SECTION 1. Indemnification......................................18
SECTION 2. Authorization........................................20
SECTION 3. Expense Advance......................................21
SECTION 4. Nonexclusivity.......................................21
SECTION 5. Insurance............................................21
SECTION 6. "The Corporation"....................................21
SECTION 7. Other Indemnification................................22
SECTION 8. Other Definitions....................................22
SECTION 9. Continuation of Indemnification......................22
SECTION 10. Amendment or Repeal..................................22
DATA ARCHIVE SERVICES, INC.
(a Delaware Corporation)
BY-LAWS
ARTICLE I OFFICES
-------------------
SECTION 1. Registered Office. The registered office of the Corporation
shall be located in Wilmington, County of New Castle, State of Delaware, and the
name of the resident agent in charge thereof shall be Corporation Service
Company.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of Directors
may from time to time appoint or the business of the Corporation may require.
ARTICLE II SEAL
-----------------
The seal of the Corporation shall, subject to alteration by the Board of
Directors, consist of a flat-faced circular die with the word "Delaware",
together with the name of the Corporation and the year of incorporation, cut or
engraved thereon.
ARTICLE III MEETING OF STOCKHOLDERS
-------------------------------------
SECTION 1. Place of Meeting. Meetings of the
stockholders shall be held either within or without the State of
Delaware at such place as the Board of Directors may fix from
time to time.
SECTION 2. Annual Meetings. The annual meeting of
stockholders shall be held for the election of directors on such
date and at such time as the Board of Directors may fix from time
to time. Any other proper business may be transacted at the
annual meeting.
SECTION 3. Special Meetings. Special meetings of the stockholders for any
purpose or purposes may be called by the Chairman of the Board of Directors, if
there be one, the President or by the directors (either by written instrument
signed by a majority or by resolution adopted by a vote of the majority), and
special meetings shall be called by the President or the Secretary whenever
stockholders owning at least a majority of the capital stock issued, outstanding
and entitled to vote so
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A Delaware Corporation
Page 2
request in writing. Such request of stockholders shall state the purpose or
purposes of the proposed meeting.
SECTION 4. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the hour, date and place thereof, and
the purpose or purposes in general terms for which the meeting is called shall,
not less than ten (10) days, or such longer period as shall be provided by law,
the Certificate of Incorporation, these By-Laws, or otherwise, and not more than
sixty (60) days before such meeting, be served upon or mailed to each
stockholder entitled to vote thereat, at the address of such stockholder as it
appears upon the stock records of the Corporation or, if such stockholder shall
have filed with the Secretary of the Corporation a written request that notices
be mailed to some other address, then to the address designated in such request.
Notice of the hour, date, place and purpose of any meeting of stockholders
may be dispensed with if every stockholder entitled to vote thereat shall attend
either in person or by proxy and shall not, at the beginning of the meeting,
object to the holding of such meeting because the meeting has not been lawfully
called or convened, or if every absent stockholder entitled to such notice shall
in writing, filed with the records of the meeting, either before or after the
holding thereof, waive such notice.
SECTION 5. Quorum and Adjournments. Except as otherwise provided by law or
by the Certificate of Incorporation, the presence in person or by proxy at any
meeting of stockholders of the holders of a majority of the shares of the
capital stock of the Corporation issued and outstanding and entitled to vote
thereat, shall be requisite and shall constitute a quorum. If two or more
classes of stock are entitled to vote as separate classes upon any question,
then, in the case of each such class, a quorum for the consideration of such
question shall, except as otherwise provided by law or by the Certificate of
Incorporation, consist of *** of all stock of that class issued, outstanding and
entitled to vote. If a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote thereat or, where a
larger quorum is required, such quorum, shall not be represented at any meeting
of the stockholders regularly called, the holders of *** of the shares present
or represented by proxy and entitled to vote thereat shall have power to adjourn
the meeting to another time, or to another time and place, without notice other
than announcement of adjournment at the meeting, and there may be successive
adjournments for like cause and in like manner until the requisite amount of
shares entitled to vote at such meeting shall be represented; provided, however,
that if the adjournment is for more than thirty (30) days, notice of the hour,
date and place of the adjourned meeting shall be given to each stockholder
entitled to vote thereat. Subject to the requirements of law and the Certificate
of Incorporation, on
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any issue on which two or more classes of stock are entitled to vote separately,
no adjournment shall be taken with respect to any class for which a quorum is
present unless the Chairman of the meeting otherwise directs. At any meeting
held to consider matters which were subject to adjournment for want of a quorum
at which the requisite amount of shares entitled to vote thereat shall be
represented, any business may be transated which might have been transacted at
the meeting as originally noticed.
SECTION 6. Votes; Proxies. Except as otherwise provided in the Certificate
of Incorporation, at each meeting of stockholders, every stockholder of record
at the closing of the transfer books, if closed, or on the date set by the Board
of Directors for the determination of stockholders entitled to vote at such
meeting, shall have one vote for each share of stock entitled to vote which is
registered in such stockholder's name on the books of the Corporation, and, in
the election of directors, may vote cumulatively to the extent, if any, and in
the manner authorized in the Certificate of Incorporation.
At each such meeting every stockholder entitled to vote shall be entitled
to do so in person, or by proxy appointed by an instrument in writing or as
otherwise permitted by law subscribed by such stockholder and bearing a date not
more than three (3) years prior to the meeting in question, unless said
instrument provides for a longer period during which it is to remain in force. 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 any interest in the Corporation generally. A stockholder may revoke any proxy
which is not irrevocable by attending the meeting and voting in person or by
filing with the Secretary of the Corporation an instrument in writing or as
otherwise permitted by law revoking the proxy or another duly executed proxy
bearing a later date.
Voting at meetings of stockholders need not be by written ballot and,
except as otherwise provided by law, need not be conducted by inspectors of
election unless so determined by the Chairman of the meeting or by the holders
of shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or represented by proxy at such meeting. If it is required or
determined that inspectors of election be appointed, the Chairman shall appoint
two inspectors of election, who shall first take and subscribe an oath or
affirmation faithfully to execute the duties of inspectors at such meeting with
strict impartiality and according to the best of their ability. The inspectors
so appointed shall take charge of the polls and, after the balloting, shall make
a certificate of the
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A Delaware Corporation
Page 4
result of the vote taken. No director or candidate for the office of director
shall be appointed as such inspector.
At any meeting at which a quorum is present, a plurality of the votes
properly cast for election to fill any vacancy on the Board of Directors shall
be sufficient to elect a candidate to fill such vacancy, and a majority of the
votes properly cast upon any other question shall decide the question, except in
any case where a larger vote is required by law, the Certificate of
Incorporation, these By-Laws, or otherwise.
SECTION 7. Organization. The Chairman of the Board, if there be one, or in
his or her absence the Vice Chairman, or in the absence of a Vice Chairman, the
President, or in the absence of the President, a Vice President, shall call
meetings of the stockholders to order and shall act as chairman thereof. The
Secretary of the Corporation, if present, shall act as secretary of all meetings
of stockholders, and, in his or her absence, the presiding officer may appoint a
secretary.
SECTION 8. Consent of Stockholders in Lieu of Meeting. Unless otherwise
restricted by the Certificate of Incorporation, any action required or permitted
by the Delaware General Corporation Law to be taken at any annual or special
meeting of the stockholders of the Corporation, 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, 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 and shall be delivered to the Corporation by
delivery to its registered office in 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 registered
mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder
who signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty (60) days of the
earliest dated consent delivered in the manner required by this section to the
Corporation, written consents signed by a sufficient number of stockholders to
take action are delivered to the corporation by delivery to its registered
office in 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 registered mail, return receipt requested.
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A Delaware Corporation
Page 5
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. In the event that the action which is consented
to is such as would have required the filing of a certificate under any section
of the Delaware General Corporation Law other than Section 228 thereof, if such
action had been voted on by stockholders at a meeting thereof, the certificate
filed under such other section shall state, in lieu of any statement required by
such section concerning any vote of stockholders, that written consent has been
given in accordance with Section 228 of the Delaware General Corporation Law,
and that written notice has been given as provided in such Section 228.
ARTICLE IV DIRECTORS
---------------------
SECTION 1. Number. The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors consisting of not less than one
director, none of whom needs to be a stockholder. The number of directors for
each year shall be fixed at each annual meeting of stockholders, but if the
number is not so fixed, the number shall remain as it stood immediately prior to
such meeting.
At each annual meeting of stockholders, the stockholders shall elect
directors. Each director so elected shall hold office, subject to the provisions
of law, the Certificate of Incorporation, these By-Laws, or otherwise, until the
next annual meeting of stockholders or until his or her successor is elected and
qualified.
At any time during any year, except as otherwise provided by law, the
Certificate of Incorporation, these By-Laws, or otherwise, the number of
directors may be increased or reduced, in each case by vote of a majority of the
stock issued and outstanding and present in person or represented by proxy and
entitled to vote for the election of directors or a majority of the directors in
office at the time of such increase or decrease, regardless of whether such
majority constitutes a quorum.
SECTION 2. Term of Office. Each director shall hold office until the next
annual meeting of stockholders and until his or her successor is duly elected
and qualified or until his or her earlier death or resignation, subject to the
right of the stockholders at any time to remove any director or directors as
provided in Section 4 of this Article.
SECTION 3. Vacancies. If any vacancy shall occur among the directors, or if
the number of directors shall at any time be increased, the directors then in
office, although less than a quorum, by a majority vote may fill the vacancies
or newly-
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created directorships, or any such vacancies or newly-created directorships may
be filled by the stockholders at any meeting.
SECTION 4. Removal by Stockholders. Except as otherwise provided by law,
the Certificate of Incorporation or otherwise, the holders of record of the
capital stock of the Corporation entitled to vote for the election of directors
may, by a majority vote, remove any director or directors, with or without
cause, and, in their discretion, elect a new director or directors in place
thereof.
SECTION 5. Meetings. Meetings of the Board of Directors shall be held at
such place, within or without the State of Delaware, as may from time to time be
fixed by resolution of the Board of Directors or by the Chairman of the Board,
if there be one, or by the President, and as may be specified in the notice or
waiver of notice of any meeting. Meetings may be held at any time upon the call
of the Chairman of the Board, if there be one, or the President or any two (2)
of the directors in office by oral, telegraphic, telex, telecopy or other form
of electronic transmission, or written notice, duly served or sent or mailed to
each director not less than twenty-four (24) hours before such meeting, except
that, if mailed, not less than *** (***) hours before such meeting.
Meetings may be held at any time and place without notice if all the
directors are present and do not object to the holding of such meeting for lack
of proper notice or if those not present shall, in writing or by telegram,
telex, telecopy or other form of electronic transmission, waive notice thereof.
A regular meeting of the Board may be held without notice immediately following
the annual meeting of stockholders at the place where such meeting is held.
Regular meetings of the Board may also be held without notice at such time and
place as shall from time to time be determined by resolution of the Board.
Except as otherwise provided by law, the Certificate of Incorporation or
otherwise, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors or any committee thereof
need be specified in any written waiver of notice.
Members of the Board of Directors or any committee thereof may participate
in a meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other and participation in a meeting pursuant to the
foregoing provisions shall constitute presence in person at the meeting.
SECTION 6. Votes. Except as otherwise provided by law,
the Certificate of Incorporation or otherwise, the vote of the
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majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
SECTION 7. Quorum and Adjournment. Except as otherwise provided by law, the
Certificate of Incorporation or otherwise, a majority of the directors shall
constitute a quorum for the transaction of business. If at any meeting of the
Board there shall be less than a quorum present, a majority of those present may
adjourn the meeting from time to time without notice other than announcement of
the adjournment at the meeting, and at such adjourned meeting at which a quorum
is present any business may be transacted which might have been transacted at
the meeting as originally noticed.
SECTION 8. Compensation. Directors shall receive compensation for their
services, as such, and for service on any Committee of the Board of Directors,
as fixed by resolution of the Board of Directors and for expenses of attendance
at each regular or special meeting of the Board or any Committee thereof.
Nothing in this Section shall be construed to preclude a director from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 9. Action By Consent of Directors. 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 or committee. Such consent shall be
treated as a vote adopted at a meeting for all purposes. Such consents may be
executed in one or more counterparts and not every Director or committee member
need sign the same counterpart.
ARTICLE V COMMITTEES OF DIRECTORS
-----------------------------------
SECTION 1. Executive Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Executive Committee of one
(1) or more members, to serve during the pleasure of the Board, to consist of
such directors as the Board may from time to time designate. The Board of
Directors shall designate the Chairman of the Executive Committee.
a. Procedure. The Executive Committee shall, by a vote of a majority of
its members, fix its own times and places of meeting, determine the
number of its members constituting a quorum for the transaction of
business, and prescribe its own rules of procedure, no change in
which shall be made save by a majority vote of its members.
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b. Responsibilities. During the intervals between the
meetings of the Board of Directors, except as otherwise
provided by the Board of Directors in establishing such
Committee or otherwise, the Executive Committee shall
possess and may exercise all the powers of the Board in
the management and direction of the business and affairs
of the Corporation; provided, however, that the
Executive Committee shall not, except to the extent the
Certificate of Incorporation or the resolution providing
for the issuance of shares of stock adopted by the Board
of Directors as provided in Section 151(a) of the
Delaware General Business Corporation Law, have the
power:
(1) to amend or authorize the amendment of the
Certificate of Incorporation or these By-Laws;
(2) to authorize the issuance of stock;
(3) to authorize the payment of any dividend;
(4) to adopt an agreement of merger or consolidation of the
Corporation or to recommend to the stockholders the sale, lease or
exchange of all or substantially all the property and business of the
Corporation;
(5) to recommend to the stockholders a dissolution, or
a revocation of a dissolution, of the Corporation; or
(6) to adopt a certificate of ownership and merger pursuant to
Section 253 of the Delaware Business Corporation Law.
c. Reports. The Executive Committee shall keep regular minutes of its
proceedings, and all action by the Executive Committee shall be
reported promptly to the Board of Directors. Such action shall be
subject to review, amendment and repeal by the Board, provided that
no rights of third parties shall be adversely affected by such
review, amendment or repeal.
d. Appointment of Additional Members. In the absence or disqualification
of any member of the Executive Committee, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not constituting 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 2. Audit Committee. The Board of Directors may,
by resolution passed by a majority of the whole Board, appoint an
Audit Committee of *** (***) or more members to serve during the
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pleasure of the Board. The Board of Directors shall designate
the Chairman of the Audit Committee.
a. Procedure. The Audit Committee, by a vote of a majority of its
members, shall fix its own times and places of meeting, shall
determine the number of its members constituting a quorum for the
transaction of business, and shall prescribe its own rules of
procedure, no change in which shall be made save by a majority vote
of its members.
b. Responsibilities. The Audit Committee shall review the
annual financial statements of the Corporation prior to
their submission to the Board of Directors, shall
consult with the Corporation's independent auditors, and
may examine and consider such other matters in relation
to the internal and external audit of the Corporation's
accounts and in relation to the financial affairs of the
Corporation and its accounts, including the selection
and retention of independent auditors, as the Audit
Committee may, in its discretion, determine to be
desirable.
c. Reports. The Audit Committee shall keep regular minutes of its
proceedings, and all action by the Audit Committee shall, from time
to time, be reported to the Board of Directors as it shall direct.
Such action shall be subject to review, amendment and repeal by the
Board, provided that no rights of third parties shall be adversely
affected by such review, amendment or repeal.
d. Appointment of Additional Members. In the absence or disqualification
of any member of the Audit Committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or
not constituting 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 3. Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, at any time appoint one or more other
committees from and outside of its own number. Every such committee must include
at least one member of the Board of Directors. The Board may from time to time
designate or alter, within the limits permitted by law, the Certificate of
Incorporation and this Article, if applicable, the duties, powers and number of
members of such other committees or change their membership, and may at any time
abolish such other committees or any of them.
a. Procedure. Each committee, appointed pursuant to this
Section, shall, by a vote of a majority of its members,
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A Delaware Corporation
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fix its own times and places of meeting, determine the number of its
members constituting a quorum for the transaction of business, and
prescribe its own rules of procedure, no change in which shall be
made save by a majority vote of its members.
b. Responsibilities. Each committee, appointed pursuant to
this Section, shall exercise the powers assigned to it
by the Board of Directors in its discretion.
c. Reports. Each committee appointed pursuant to this
-------
Section shall keep regular minutes of proceedings, and
all action by each such committee shall, from time to
time, be reported to the Board of Directors as it shall
direct. Such action shall be subject to review,
amendment and repeal by the Board, provided that no
rights of third parties shall be adversely affected by
such review, amendment or repeal.
d. Appointment of Additional Members. In the absence or
---------------------------------
disqualification of any member of each committee,
appointed pursuant to this Section, the member or
members thereof present at any meeting and not
disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the
Board of Directors (or, to the extent permitted, another
person) to act at the meeting in place of any such
absent or disqualified member.
SECTION 4. Term of Office. Each member of a committee shall hold office
until the first meeting of the Board of Directors following the annual meeting
of stockholders (or until such other time as the Board of Directors may
determine, either in the vote establishing the committee or at the election of
such member or otherwise) and until his or her successor is elected and
qualified, or until he or she sooner dies, resigns, is removed, is replaced by
change of membership or becomes disqualified by ceasing to be a director (where
membership on the Board is required), or until the committee is sooner abolished
by the Board of Directors.
ARTICLE VI OFFICERS
---------------------
SECTION 1. Officers. The Board of Directors shall elect a President, a
Secretary and a Treasurer, and, in their discretion, may elect a Chairman of the
Board, a Vice Chairman of the Board, a Controller, and one or more Executive
Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers
and Assistant Controllers as deemed necessary or appropriate. Such officers
shall be elected annually by the Board of Directors at its first meeting
following the annual
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meeting of stockholders (or at such other meeting as the Board of Directors
determines), and each shall hold office for the term provided by the vote of the
Board, except that each will be subject to removal from office in the discretion
of the Board as provided herein. The powers and duties of more than one office
may be exercised and performed by the same person.
SECTION 2. Vacancies. Any vacancy in any office may be
filled for the unexpired portion of the term by the Board of
Directors, at any regular or special meeting.
SECTION 3. Chairman of the Board. The Chairman of the Board of Directors,
if elected, shall be a member of the Board of Directors and shall preside at its
meetings. The Chairman, if other than the President, shall advise and counsel
with the President, and shall perform such duties as from time to time may be
assigned to him or her by the Board of Directors.
SECTION 4. President. The President shall be the chief executive officer of
the Corporation. Subject to the directions of the Board of Directors, the
President shall have and exercise direct charge of and general supervision over
the business and affairs of the Corporation and shall perform all duties
incident to the office of the chief executive officer of a corporation and such
other duties as from time to time may be assigned to him or her by the Board of
Directors. The President may but need not be a member of the Board of Directors.
SECTION 5. Executive Vice Presidents and Vice Presidents. Each Executive
Vice President and Vice President shall have and exercise such powers and shall
perform such duties as from time to time may be assigned to him or to her by the
Board of Directors or the President.
SECTION 6. Secretary. The Secretary shall keep the minutes of all meetings
of the stockholders and of the Board of Directors in books provided for the
purpose; shall see that all notices are duly given in accordance with the
provisions of law and these By-Laws; the Secretary shall be custodian of the
records and of the corporate seal or seals of the Corporation; shall see that
the corporate seal is affixed to all documents the execution of which, on behalf
of the Corporation under its seal, is duly authorized, and, when the seal is so
affixed, he or she may attest the same; the Secretary may sign, with the
President, an Executive Vice President or a Vice President, certificates of
stock of the Corporation; and, in general, the Secretary shall perform all
duties incident to the office of secretary of a corporation, and such other
duties as from time to time may be assigned to him or her by the Board of
Directors.
SECTION 7. Assistant Secretaries. The Assistant
Secretaries in order of their seniority shall, in the absence or
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disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as the Board of Directors shall
prescribe or as from time to time may be assigned by the Secretary.
SECTION 8. Treasurer. The Treasurer shall have charge of and be responsible
for all funds, securities, receipts and disbursements of the Corporation, and
shall deposit, or cause to be deposited, in the name of the Corporation, all
monies or other valuable effects in such banks, trust companies or other
depositaries as shall, from time to time, be selected by the Board of Directors;
may endorse for collection on behalf of the Corporation checks, notes and other
obligations; may sign receipts and vouchers for payments made to the
Corporation; may sign checks of the Corporation, singly or jointly with another
person as the Board of Directors may authorize, and pay out and dispose of the
proceeds under the direction of the Board; the Treasurer shall render to the
President and to the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; the Treasurer may sign, with the
President, or an Executive Vice President or a Vice President, certificates of
stock of the Corporation; and in general, shall perform all the duties incident
to the office of treasurer of a corporation, and such other duties as from time
to time may be assigned by the Board of Directors. Unless the Board of Directors
shall otherwise determine, the Treasurer shall be the chief financial officer of
the Corporation.
SECTION 9. Assistant Treasurers. The Assistant Treasurers in order of their
seniority 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 as the Board of Directors shall prescribe or as from time to time may be
assigned by the Treasurer.
SECTION 10. Controller. The Controller, if elected, shall be the chief
accounting officer of the Corporation and shall perform all duties incident to
the office of a controller of a corporation, and, in the absence of or
disability of the Treasurer or any Assistant Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as the
Board of Directors shall prescribe or as from time to time may be assigned by
the President or the Treasurer.
SECTION 11. Assistant Controllers. The Assistant Controllers in order of
their seniority shall, in the absence or disability of the Controller, perform
the duties and exercise the powers of the Controller and shall perform such
other duties as the Board of Directors shall prescribe or as from time to time
may be assigned by the Controller.
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A Delaware Corporation
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SECTION 12. Subordinate Officers. The Board of Directors may appoint such
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
SECTION 13. Compensation. The Board of Directors shall
fix the compensation of all officers of the Corporation. It may
authorize any officer, upon whom the power of appointing
subordinate officers may have been conferred, to fix the
compensation of such subordinate officers.
SECTION 14. Removal. Any officer of the Corporation may
be removed, with or without cause, by action of the Board of
Directors.
SECTION 15. Bonds. The Board of Directors may require any officer of the
Corporation to give a bond to the Corporation, conditional upon the faithful
performance of his or her duties, with one or more sureties and in such amount
as may be satisfactory to the Board of Directors.
ARTICLE VII CERTIFICATES OF STOCK
-----------------------------------
SECTION 1. Form and Execution of Certificates. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as the Board of Directors may from
time to time prescribe. The certificates of stock of each class shall be
consecutively numbered and signed by the Chairman or Vice Chairman of the Board,
if any, the President, an Executive Vice President or a Vice President and by
the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer
of the Corporation, and may be countersigned and registered in such manner as
the Board of Directors may by resolution prescribe, and shall bear the corporate
seal or a printed or engraved facsimile thereof. Where any such certificate is
signed by a transfer agent or transfer clerk acting on behalf of the
Corporation, the signatures of any such Chairman, Vice Chairman, President,
Executive Vice President, Vice President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary may be facsimiles, engraved or printed. In case
any officer or officers, who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or certificates, shall
cease to be such officer or officers, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered by the Corporation as though the person or persons who signed such
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A Delaware Corporation
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certificate or certificates or whose facsimile signature or signatures shall
have been used thereon had not ceased to be such officer or officers.
In case the corporate seal which has been affixed to, impressed on, or
reproduced in any such certificate or certificates shall cease to be the seal of
the Corporation before such certificate or certificates have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered by the Corporation as though the seal affixed thereto, impressed
thereon or reproduced therein had not ceased to be the seal of the Corporation.
Every certificate for shares of stock which are subject to any restriction
on transfer pursuant to law, the Certificate of Incorporation, these By-Laws, or
any agreement to which the Corporation is a party, shall have the restriction
noted conspicuously on the certificate, and shall also set forth, on the face or
back, either the full text of the restriction or a statement of the existence of
such restriction and (except if such restriction is imposed by law) a statement
that the Corporation will furnish a copy thereof to the holder of such
certificate upon written request and without charge.
Every certificate issued when the Corporation is authorized to issue more
than one class or series of stock shall set forth on its face or back either the
full text of the preferences, voting powers, qualifications, and special and
relative rights of the shares of each class and series authorized to be issued,
or a statement of the existence of such preferences, powers, qualifications and
rights, and a statement that the Corporation will furnish a copy thereof to the
holder of such certificate upon written request and without charge.
SECTION 2. Transfer of Shares. The shares of the stock of the Corporation
shall be transferred on the books of the Corporation by the holder thereof in
person or by his or her attorney lawfully constituted, upon surrender for
cancellation of certificates for the same number of shares, with an assignment
and power of transfer endorsed thereon or attached thereto, duly executed, with
such proof or guaranty of the authenticity of the signature as the Corporation
or its agents may reasonably require. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly 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, save as expressly
provided by law or by the Certificate of Incorporation. It shall be the duty of
each stockholder to notify the Corporation of his or her post office address.
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A Delaware Corporation
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SECTION 3. Closing of Transfer Books. The stock transfer books of the
Corporation may, if deemed appropriate by the Board of Directors, be closed for
such length of time not exceeding fifty (50) days as the Board may determine,
preceding the date of any meeting of stockholders or the date for the payment of
any dividend or the date for the allotment of rights or the date when any
issuance, change, conversion or exchange of capital stock shall go into effect,
during which time no transfer of stock on the books of the Corporation may be
made.
SECTION 4. Fixing Date for Determination of Stockholders of Record. 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 distribution 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 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: (a) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, the Certificate of
Incorporation or otherwise, not be more than sixty (60) nor less than ten (10)
days before the date of such meeting; (b) in the case of determination of
stockholders entitled to express consent to corporate action in writing without
a meeting, shall, unless otherwise required by law, the Certificate of
Incorporation or otherwise, not be more than ten (10) days from the date upon
which the resolution fixing the record date is adopted by the Board of
Directors; and (c) in the case of any other action, shall not be more than sixty
(60) days prior to such other action. If no record date is fixed: (a) the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next 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; (b) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action of the Board of
Directors is required by law, shall be the first date on which a signed written
consent setting forth the action take or proposed to be taken is delivered to
the Corporation in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action; and (c) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of
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A Delaware Corporation
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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 5. Lost or Destroyed Certificates. In case of
the loss or destruction of any certificate of stock, a new
certificate may be issued under the following conditions:
a. The owner of said certificate shall file with the
Secretary or any Assistant Secretary of the Corporation
an affidavit giving the facts in relation to the
ownership, and in relation to the loss or destruction of
said certificate, stating its number and the number of
shares represented thereby; such affidavit shall be in
such form and contain such statements as shall satisfy
the President, any Executive Vice President, Vice
President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer, that said
certificate has been accidentally destroyed or lost, and
that a new certificate ought to be issued in lieu
thereof. Upon being so satisfied, any such officer may
require such owner to furnish the Corporation a bond in
such penal sum and in such form as he or she may deem
advisable, and with a surety or sureties approved by him
or her, to indemnify and save harmless the Corporation
from any claim, loss, damage or liability which may be
occasioned by the issuance of a new certificate in lieu
thereof. Upon such bond being so filed, if so required,
a new certificate for the same number of shares shall be
issued to the owner of the certificate so lost or
destroyed; and the transfer agent and registrar, if any,
of stock shall countersign and register such new
certificate upon receipt of a written order signed by
any such officer, and thereupon the Corporation will
save harmless said transfer agent and registrar in the
premises. In case of the surrender of the original
certificate, in lieu of which a new certificate has been
issued, or the surrender of such new certificate, for
cancellation, the bond of indemnity given as a condition
of the issue of such new certificate may be surrendered;
or
b. The Board of Directors of the Corporation may by
resolution authorize and direct any transfer agent or
registrar of stock of the Corporation to issue and
register respectively from time to time without further
action or approval by or on behalf of the Corporation
new certificates of stock to replace certificates
reported lost, stolen or destroyed upon receipt of an
affidavit of loss and bond of indemnity in form and
amount and with surety satisfactory to such transfer
By-laws of Data Archive Services, Inc.
A Delaware Corporation
Page 17
agent or registrar in each instance or upon such terms and conditions
as the Board of Directors may determine.
SECTION 6. Uncertificated Shares. The Board of Directors of the Corporation
may by resolution provide that one or more of any or all classes or series of
the stock of the Corporation shall be uncertificated shares, subject to the
provisions of Section 158 of the Delaware General Corporation Law.
ARTICLE VIII EXECUTION OF DOCUMENTS
-------------------------------------
SECTION 1. Execution of Checks, Notes, etc. All checks and drafts on the
Corporation's bank accounts and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers, or agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors, which may in
its discretion authorize any such signatures to be facsimile.
SECTION 2. Execution of Contracts, Assignments, etc. Unless the Board of
Directors shall have otherwise provided generally or in a specific instance, all
contracts, agreements, endorsements, assignments, transfers, stock powers, or
other instruments shall be signed by the President, any Executive Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. The Board of Directors may, however, in
its discretion, require any or all such instruments to be signed by any two or
more of such officers, or may permit any or all of such instruments to be signed
by such other officer or officers, agent or agents, as it shall be thereunto
authorize from time to time.
SECTION 3. Execution of Proxies. The President, any Executive Vice
President or any Vice President, and the Secretary, the Treasurer, any Assistant
Secretary or any Assistant Treasurer, or any other officer designated by the
Board of Directors, may sign on behalf of the Corporation proxies to vote upon
shares of stock of other companies standing in the name of the Corporation.
ARTICLE IX INSPECTION OF BOOKS
--------------------------------
The Board of Directors shall determine from time to time whether, and if
allowed, to what extent and at what time and places and under what conditions
and regulations, the accounts and books of the Corporation (except such as may
by law be specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the
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A Delaware Corporation
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Corporation, except as conferred by the laws of the State of Delaware, unless
and until authorized so to do by resolution of the Board of Directors or of the
stockholders of the Corporation.
ARTICLE X FISCAL YEAR
-----------------------
The fiscal year of the Corporation shall be determined from time to time by
vote of the Board of Directors.
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A Delaware Corporation
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ARTICLE XI AMENDMENTS
-----------------------
These By-Laws may be altered, amended, changed or repealed and new By-Laws
adopted by the stockholders or, to the extent provided in the Certificate of
Incorporation, by the Board of Directors, in either case at any meeting called
for that purpose at which a quorum shall be present. Any by-law, whether made,
altered, amended, changed or repealed by the stockholders or the Board of
Directors may be repealed, amended, changed, further amended, changed, repealed
or reinstated, as the case may be, either by the stockholders or by the Board of
Directors, as herein provided; except that this Article may be altered, amended,
changed or repealed only by vote of the stockholders.
ARTICLE XII INDEMNIFICATION
-----------------------------
SECTION 1. Indemnification.
a. Action By Third Party. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter
be amended, any person who was or is a party or is
threatened to be made a party or is otherwise involved
in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right
of the Corporation) by reason of the fact that he, or a
person for whom he or she is the legal representative,
is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, member,
trustee, employee or agent of another corporation,
partnership, joint venture, limited liability company,
trust or other enterprise or non-profit entity against
all liability, losses, expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or
she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best
interest of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good
faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interest of
the Corporation, and, with respect to any criminal
By-laws of Data Archive Services, Inc.
A Delaware Corporation
Page 20
action or proceeding, had reasonable cause to believe
that his or her conduct was unlawful.
b. Action By Corporation. The Corporation shall indemnify
any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact
that he or she is or was a director, trustee, partner,
officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a
director, officer, partner, member, trustee, employee or
agent of another corporation, partnership, joint
venture, limited liability company, trust or other
enterprise or non-profit entity against expenses
(including attorneys' fees) actually and reasonably
incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in
good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be
made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his
or her duty to the Corporation unless and only to the
extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was
brought shall determine upon application that despite
the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
the Court of Chancery of the State of Delaware or such
other court shall deem proper.
c. To the extent that any person referred to in paragraphs
a. or b. above has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to therein, or in defense of any claim, issue
or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection
therewith.
SECTION 2. Authorization. Any indemnification under
Section 1 of this Article (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director,
officer, partner, member, trustee, employee or agent is proper in
the circumstances because such person has met the applicable
standard of conduct set forth in Section 1 of this Article. Such
determination shall be made: a. by the Board of Directors by a
majority vote of a quorum consisting of directors who were not
By-laws of Data Archive Services, Inc.
A Delaware Corporation
Page 21
parties to such action, suit or proceeding, or b. if such a
quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel
in written opinion, or c. by the stockholders.
SECTION 3. Expense Advance. Expenses (including attorneys' fees) incurred
by an officer or director of the Corporation in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the manner provided in
Section 2 of this Article upon receipt of an undertaking by or on behalf of such
officer or director to repay such amount, unless it shall ultimately be
determined that such person is entitled to be indemnified by the Corporation as
authorized in this Article. Such expenses (including attorneys' fees) incurred
by other employees or agents of the Corporation may be so paid upon such terms
and conditions, if any, as the Board of Directors deems appropriate.
SECTION 4. Nonexclusivity. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other Sections of this Article shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in an official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a director, officer, partner, member, trustee, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
SECTION 5. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, member, trustee, employee or agent
of another corporation, partnership, joint venture, limited liability company,
trust or other enterprise or non-profit entity against any liability asserted
against and incurred by him or her in any such capacity, or arising out of his
or her status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article or Section 145 of Title 8 of the Delaware Code relating to the General
Corporation Law of the State of Delaware.
SECTION 6. "The Corporation". For the purposes of this
Article, references to "the Corporation" shall include the
resulting corporation and, to the extent that the Board of
Directors of the resulting corporation so decides, all
constituent corporations (including any constituent of a
By-laws of Data Archive Services, Inc.
A Delaware Corporation
Page 22
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 a constituent corporation or is or
was serving at the request of such constituent corporation as director, officer,
partner, member, trustee, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise or non-profit entity shall stand in the
same position under the provisions of this Article with respect to the resulting
or surviving corporation if its separate existence had continued.
SECTION 7. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
trustee, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or non-profit entity shall
be reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust or other enterprise or
non-profit entity or from insurance.
SECTION 8. Other Definitions. For purposes of this Article, references to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, trustee, officer, employee or agent of
the Corporation which imposes duties on, or involves services by, such director,
trustee, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article.
SECTION 9. Continuation of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, trustee, partner, officer, employee or agent
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
SECTION 10. Amendment or Repeal. Neither the amendment nor repeal of this
Article nor the adoption of any provision of these By-Laws inconsistent with
this Article shall reduce, eliminate or adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
effectiveness of such amendment, repeal or adoption.