Exhibit 1.2
BY-LAWS
OF
COMDISCO HOLDING COMPANY, INC.
A Delaware Corporation
Effective August 9, 2002
TABLE OF CONTENTS
Page
ARTICLE I OFFICES........................................................................................1
Section 1. Registered Office......................................................................1
Section 2. Other Offices..........................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS......................................................................1
Section 1. Place of Meetings......................................................................1
Section 2. Annual Meetings........................................................................2
Section 3. Special Meetings.......................................................................2
Section 4. Notice.................................................................................2
Section 5. Adjournments...........................................................................3
Section 6. Quorum.................................................................................3
Section 7. Voting.................................................................................4
Section 8. Proxies................................................................................4
Section 9. Consent of Stockholders in Lieu of Meeting.............................................5
Section 10. List of Stockholders Entitled to Vote..................................................8
Section 11. Record Date............................................................................8
Section 12. Stock Ledger..........................................................................10
Section 13. Conduct of Meetings...................................................................10
Section 14. Inspectors of Election................................................................11
ARTICLE III DIRECTORS...................................................................................12
Section 1. Number and Election of Directors......................................................12
Section 2. Vacancies.............................................................................12
Section 3. Duties and Powers.....................................................................12
Section 4. Meetings..............................................................................13
Section 5. Organization..........................................................................13
Section 6. Resignations of Directors.............................................................13
Section 7. Quorum................................................................................14
Section 8. Actions of the Board by Written Consent...............................................14
Section 9. Meetings by Means of Conference Telephone.............................................14
Section 10. Committees............................................................................15
Section 11. Compensation..........................................................................15
Section 12. Interested Directors..................................................................16
ARTICLE IV OFFICERS.....................................................................................17
Section 1. Officers..............................................................................17
Section 2. Powers and Duties of the Chairman of the Board........................................18
Section 3. Powers and Duties of the Chief Executive Officer......................................18
Section 4. Powers and Duties of the Chief Operating Officer......................................19
Section 5. Powers and Duties of the President....................................................20
Section 6. Powers and Duties of the Executive Vice Presidents, Senior Vice
Presidents and Vice Presidents......................................................20
Section 7. Powers and Duties of the Controller...................................................20
Section 8. Powers and Duties of the Treasurer....................................................21
Section 9. Powers and Duties of the Secretary....................................................21
Section 10. Powers and Duties of Additional Officers..............................................22
ARTICLE V STOCK.........................................................................................22
Section 1. Form of Certificates..................................................................22
Section 2. Signatures............................................................................22
Section 3. Lost Certificates.....................................................................23
Section 4. Transfers.............................................................................23
Section 5. Dividend Record Date..................................................................24
Section 6. Record Owners.........................................................................24
Section 7. Transfer and Registry Agents..........................................................24
ARTICLE VI NOTICES......................................................................................25
Section 1. Notices...............................................................................25
Section 2. Waivers of Notice.....................................................................26
ARTICLE VII GENERAL PROVISIONS..........................................................................26
Section 1. Dividends.............................................................................26
Section 2. Disbursements.........................................................................27
Section 3. Fiscal Year...........................................................................27
Section 4. Corporate Seal........................................................................27
ARTICLE VIII AMENDMENTS.................................................................................28
Section 1. Amendments............................................................................28
Section 2. Entire Board of Directors.............................................................28
BY-LAWS
OF
COMDISCO HOLDING COMPANY, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The address of the registered office
of the Corporation in the State of Delaware is 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its registered agent at
that address is The Corporation Trust Company.
Section 2. Other Offices. The Corporation also may 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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors. The Board of
Directors may, in its sole discretion, determine that a meeting of the
stockholders shall not be held at any place, but may instead be held solely
by means of remote communication in the manner authorized by the General
Corporation Law of the State of Delaware (the "DGCL").
Section 2. Annual Meetings. The Annual Meeting of Stockholders
shall be held on such date and at such time as shall be designated from time
to time by the Board of Directors. Any proper business may be transacted at
the Annual Meeting of Stockholders.
Section 3. Special Meetings. Unless otherwise required by law or by
the certificate of incorporation of the Corporation, as amended and restated
from time to time (the "Certificate of Incorporation"), Special Meetings of
Stockholders, for any purpose or purposes, may be called by either: (i) the
Chairman, the Chief Executive Officer, the President or the Secretary; (ii)
any such officer at the request in writing of the Board of Directors or a
committee of the Board of Directors that has been duly designated by the
Board of Directors and whose powers and authority include the power to call
such meetings; or (iii) stockholders owning a majority of the capital stock
of the Corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting. At a Special
Meeting of Stockholders, only such business shall be conducted as shall be
specified in the notice of meeting (or any supplement thereto).
Section 4. Notice. Whenever stockholders are required or permitted
to take any action at a meeting, a written notice of the meeting shall be
given which shall state the place, if any, date and hour of the meeting, the
means of remote communications, if any, by which stockholders and
proxyholders may be deemed to be present in person and vote at such meeting,
and, in the case of a Special Meeting, the purpose or purposes for which the
meeting is called. Unless otherwise required by law, written notice of any
meeting shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to notice of and
to vote at such meeting.
Section 5. Adjournments. Any meeting of the stockholders may be
adjourned from time to time to reconvene at the same or some other place,
and notice need not be given of any such adjourned meeting if the time and
place, if any, thereof and the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person
and vote at such adjourned meeting 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 (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting in accordance with the requirements of Section 4
hereof shall be given to each stockholder of record entitled to notice of
and to vote at the meeting.
Section 6. Quorum. Unless otherwise required by applicable law or
the Certificate of Incorporation, the holders of a majority of the
Corporation's capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business.
A quorum, once established, shall not be broken by the withdrawal of enough
votes to leave less than a quorum. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall
have power to adjourn the meeting from time to time, in the manner provided
in Section 5 hereof, until a quorum shall be present or represented.
Section 7. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these By-Laws, any question brought before
any meeting of the stockholders, other than the election of directors, shall
be decided by the vote of the holders of a majority of the total number of
votes of the Corporation's capital stock represented and entitled to vote
thereat, voting as a single class. Unless otherwise provided in the
Certificate of Incorporation, and subject to Section 5 of Article V hereof,
each stockholder represented at a meeting of the stockholders shall be
entitled to cast one (1) vote for each share of the capital stock entitled
to vote thereat held by such stockholder. Such votes may be cast in person
or by proxy as provided in Section 8 hereof. The Board of Directors, in its
discretion, or the officer of the Corporation presiding at a meeting of the
stockholders, in such officer's discretion, may require that any votes cast
at such meeting shall be cast by written ballot.
Section 8. Proxies. Each stockholder entitled to vote at a meeting
of the stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
such stockholder as proxy, but no such proxy shall be voted upon after three
(3) years from its date, unless such proxy provides for a longer period.
Without limiting the manner in which a stockholder may authorize another
person or persons to act for such stockholder as proxy, the following shall
constitute a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing
another person or persons to act for such stockholder as proxy.
Execution may be accomplished by the stockholder or such
stockholder's authorized officer, director, employee or agent
signing such writing or causing such person's signature to be
affixed to such writing by any reasonable means, including, but not
limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons
to act for such stockholder as proxy by transmitting or authorizing
the transmission of a telegram, cablegram or other means of
electronic transmission to the person who will be the holder of the
proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will
be the holder of the proxy to receive such transmission, provided
that any such telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with information
from which it can be determined that the telegram, cablegram or
other electronic transmission was authorized by the stockholder. If
it is determined that such telegrams, cablegrams or other
electronic transmissions are valid, the inspectors or, if there are
no inspectors, such other persons making that determination shall
specify the information on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission authorizing another person or persons to act as
proxy for a stockholder may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided, however, that such copy,
facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
Section 9. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required
or permitted to be taken at any Annual or Special Meeting of 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 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 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. 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 9 to the Corporation, written consents signed by a sufficient number
of holders to take action are 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 the stockholders are recorded. A
telegram, cablegram or other electronic transmission consenting to an action
to be taken and transmitted by a stockholder or proxyholder, or by a person
or persons authorized to act for a stockholder or proxyholder, shall be
deemed to be written, signed and dated for the purposes of this Section 9,
provided that any such telegram, cablegram or other electronic transmission
sets forth or is delivered with information from which the Corporation can
determine (i) that the telegram, cablegram or other electronic transmission
was transmitted by the stockholder or proxyholder or by a person or persons
authorized to act for the stockholder or proxyholder and (ii) the date on
which such stockholder or proxyholder or authorized person or persons
transmitted such telegram, cablegram or electronic transmission. The date on
which such telegram, cablegram or electronic transmission is transmitted
shall be deemed to be the date on which such consent was signed. No consent
given by telegram, cablegram or other electronic transmission shall be
deemed to have been delivered until such consent is reproduced in paper form
and until such paper form shall be 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 the stockholders are recorded.
Delivery made to the Corporation's registered office shall be made by hand
or by certified or registered mail, return receipt requested. Any copy,
facsimile or other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all purposes
for which the original writing could be used, provided that such copy,
facsimile or other reproduction shall be a complete reproduction of the
entire original writing. 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 and who, if the action
had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of holders to take the action were
delivered to the Corporation as provided above in this Section 9.
Section 10. List of Stockholders Entitled to Vote. The officer of
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten (10) days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for
a period of at least ten (10) days prior to the meeting (i) on a reasonably
accessible electronic network, provided that the information required to
gain access to such list is provided with the notice of the meeting, or (ii)
during ordinary business hours, at the principal place of business of the
Corporation. In the event that the Corporation determines to make the list
available on an electronic network, the Corporation may take reasonable
steps to ensure that such information is available only to stockholders of
the Corporation. If the meeting is to be held at a place, then the list
shall 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.
If the meeting is to be held solely by means of remote communication, then
the list shall also be open to the examination of any stockholder during the
whole time of the meeting on a reasonably accessible electronic network, and
the information required to access such list shall be provided with the
notice of the meeting.
Section 11. Record Date.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of the
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
sixty (60) nor less than ten (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 the 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. A
determination of stockholders of record entitled to notice of or to
vote at a meeting of the 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.
(b) 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 record date shall not be more than ten (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 applicable law, 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 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. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors
is required by applicable law, 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 12. Stock Ledger. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 10 of this Article II or the
books of the Corporation, or to vote in person or by proxy at any meeting of
the stockholders.
Section 13. Conduct of Meetings. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the
conduct of any meeting of the stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as adopted
by the Board of Directors, the chairman of any meeting of the stockholders
shall have the right and authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman, are
appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board of Directors or prescribed by
the chairman of the meeting, may include, without limitation, the following:
(i) the establishment of an agenda or order of business for the meeting;
(ii) the determination of when the polls shall open and close for any given
matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv)
limitations on attendance at or participation in the meeting to stockholders
of record of the Corporation, their duly authorized and constituted proxies
or such other persons as the chairman of the meeting shall determine; (v)
restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (vi) limitations on the time allotted to questions
or comments by participants.
Section 14. Inspectors of Election. In advance of any meeting of
the stockholders, the Board of Directors, by resolution, the Chairman, the
Chief Executive Officer or the President shall appoint one or more
inspectors to act at the meeting and make a written report thereof. One or
more other persons may be designated as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a
meeting of the stockholders, the chairman of the meeting shall appoint one
or more inspectors to act at the meeting. Unless otherwise required by
applicable law, inspectors may be officers, employees or agents of the
Corporation. Each inspector, before entering upon the discharge of the
duties of inspector, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of
such inspector's ability. The inspector shall have the duties prescribed by
law and shall take charge of the polls and, when the vote is completed,
shall make a certificate of the result of the vote taken and of such other
facts as may be required by applicable law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The number of the
members of the Board of Directors shall be as set forth in the Certificate
of Incorporation. Members of the Board of Directors shall be elected for a
two (2) year term. Except as provided in Section 2 of this Article III, each
director shall be elected by a plurality of the votes cast at the Annual
Meeting of Stockholders for the year in which his or her two-year term
expires and each such director so elected shall hold office until such
director's successor is duly elected and qualified in accordance with the
Certificate of Incorporation or until such director's earlier death,
resignation or removal. Directors need not be stockholders.
Section 2. Vacancies. Vacancies on the Board of Directors shall be
filled as set forth in the Certificate of Incorporation.
Section 3. Duties and Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors which may exercise all such power and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or these
By-Laws required to be exercised or done by the stockholders. In so managing
the business and affairs of the Corporation with the business purpose to
sell, collect or otherwise reduce to money the assets of the Corporation in
the ordinary course and in an orderly manner, pay and discharge the
Corporation's liabilities and distribute any excess to the Corporation's
shareholders in the form of dividends or other distributions, the Board of
Directors shall have no duty or obligation whatsoever to consider
re-commencing ordinary operations.
Section 4. Meetings. The Board of Directors may hold meetings, both
regular and special, either within or without the State of Delaware. Regular
meetings of the Board of Directors may be held without notice at such time
and at such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be called by the
Chairman, the Chief Executive Officer, the President, or by any director.
Notice thereof stating the place, date and hour of the meeting shall be
given to each director either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone, telegram or electronic means
on twenty-four (24) hours' notice, or on such shorter notice as the person
or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. Organization. At each meeting of the Board of Directors,
the Chairman of the Board of Directors, or, in his or her absence, a
director chosen by a majority of the directors present, shall act as
chairman. The Secretary of the Corporation shall act as secretary at each
meeting of the Board of Directors. In case the Secretary shall be absent
from any meeting of the Board of Directors, an Assistant Secretary shall
perform the duties of secretary at such meeting; and in the absence from any
such meeting of the Secretary and all the Assistant Secretaries, the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 6. Resignations of Directors. Any director of the
Corporation may resign at any time, by giving notice in writing or by
electronic transmission to the Chairman of the Board of Directors, the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time therein specified or, if no time is specified,
immediately; and, unless otherwise specified in such notice, the acceptance
of such resignation shall not be necessary to make it effective.
Section 7. Quorum. Except as otherwise required by law or the
Certificate of Incorporation, at all meetings of the Board of Directors, a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting of the time
and place of the adjourned meeting, until a quorum shall be present.
Section 8. Actions of the Board by Written Consent. Unless
otherwise provided in the Certificate of Incorporation or these By-Laws, any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all
the members of the Board of Directors or committee, as the case may be,
consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the
minutes of proceedings of the Board of Directors or committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall
be in electronic form if the minutes are maintained in electronic form.
Section 9. Meetings by Means of Conference Telephone. Unless
otherwise provided in the Certificate of Incorporation or these By-Laws,
members of the Board of Directors of the Corporation, or any committee
thereof, may participate in a meeting of the Board of Directors or such
committee by means 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 a meeting pursuant to this Section 9
shall constitute presence in person at such meeting.
Section 10. Committees. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the directors
of the Corporation. 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 any such committee. In the absence
or disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, 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 the place of any absent or
disqualified member. Any committee, to the extent permitted by law and
provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require
it. Each committee shall keep regular minutes and report to the Board of
Directors when required.
Section 11. Compensation. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at each meeting of the Board of Directors or
a stated salary for service as director, payable in cash or securities. No
such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for service as
committee members.
Section 12. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association
or other organization in which one or more of its directors or officers are
directors or officers or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because any such director's or officer's vote is counted for such purpose
if: (i) the material facts as to the director's or officer's relationship or
interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; (ii) the material facts
as to the director's or officer's relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the Corporation shall be a
Chairman of the Board of Directors, a Chief Executive Officer, a Chief
Operating Officer, a President, one or more Executive Vice Presidents, one
or more Senior Vice Presidents, one or more Vice Presidents, a Controller, a
Treasurer, one or more Assistant Treasurers, a Secretary, and one or more
Assistant Secretaries. Any number of offices may be held by the same person.
All such officers shall be elected by the Board of Directors at the meeting
of the Board of Directors held on the date of each Annual Meeting of the
stockholders (or action by written consent of stockholders in lieu of the
Annual Meeting of Stockholders). The Board of Directors may elect such
additional officers as they deem necessary, who shall have such authority
and shall perform such duties as the Board of Directors from time to time
prescribe. In its discretion, the Board of Directors may leave any office
unfilled.
Officers of the Corporation shall hold their offices for such terms
as shall be determined by the Board of Directors; and each officer of the
Corporation shall hold office until such officer's successor is elected and
qualified, or until such officer's earlier death, resignation or removal.
Any officer elected by the Board of Directors may be removed at any time by
vote of the Board of Directors.
The President or Chief Operating Officer may also appoint officers
of the Corporation's divisions or business units, but such individuals will
not be deemed to be officers of the Corporation.
Section 2. Powers and Duties of the Chairman of the Board. The
Chairman of the Board of Directors shall preside at all meetings of the
stockholders and of the Board of Directors. The Chairman of the Board of
Directors shall be the Chief Executive Officer of the Corporation. Except
where by law the signature of the President is required, the Chairman of the
Board of Directors shall possess the same power as the President to sign all
contracts, certificates and other instruments of the Corporation which may
be authorized by the Board of Directors. He shall from time to time secure
information concerning the business and affairs of the Corporation and shall
promptly lay such information before the Board of Directors. He shall
communicate to the Board of Directors all matters presented by any officer
of the Corporation for its consideration, and shall from time to time
communicate to the officers such action of the Board of Directors as may in
his judgment affect the performance of their official duties. During the
absence or disability of the President, the Chairman of the Board of
Directors shall exercise all the powers and discharge all the duties of the
President. The Chairman of the Board of Directors also shall perform such
other duties and may exercise such other powers as may from time to time be
assigned by these By-Laws or by the Board of Directors.
Section 3. Powers and Duties of the Chief Executive Officer. The
Chief Executive Officer shall be the chief executive officer of the
Corporation and, subject to the supervision, direction and control of the
Board of Directors and Chairman of the Board of Directors, shall have the
general supervision, direction and control of the business and officers of
the Corporation with all such powers as may be reasonably incident to such
responsibilities. The Chief Executive Officer shall implement the general
directives, plans and policies formulated by the Board of Directors and
shall further have such duties, responsibilities and authorities as may be
assigned to him by the Board of Directors. The Chief Executive Officer shall
have the general powers and duties of management usually vested in the chief
executive officer of a corporation.
During the time of any vacancy in the office of the Chairman of the
Board of Directors or in the event of the absence of the Chairman of the
Board of Directors, the Chief Executive Officer shall have the duties and
powers of the Chairman of the Board of Directors unless otherwise determined
by the Board of Directors. In the absence of the Chairman of the Board of
Directors, the Chief Executive Officer shall preside at meetings of the
Stockholders and Board of Directors. During any time of any vacancy in the
office of Chief Operating Officer or in the event of the absence or
disability of the Chief Operating Officer, the Chief Executive Officer shall
have the duties and powers of the Chief Operating Officer unless otherwise
determined by the Board of Directors.
Section 4. Powers and Duties of the Chief Operating Officer. The
Chief Operating Officer shall be the chief operating officer of the
Corporation and, subject to the supervision, direction and control of the
Chief Executive Officer and the Board of Directors, shall manage day-to-day
operations of the Corporation. He shall have the general powers and duties
of management usually vested in the chief operating officer of a corporation
and such other powers and duties as may be assigned to him by the Board of
Directors, the Chief Executive Officer or these By-Laws. In the absence of
the Chief Operating Officer, his duties shall be performed and his authority
may be exercised by the Chief Executive Officer or an Executive Vice
President of the Corporation as may have been designated by the Chief
Operating Officer with the right reserved to the Board of Directors to
designate or supersede any designation so made.
During the time of any vacancy in the offices of the Chairman of
the Board of Directors and Chief Executive Officer or in the event of the
absence or disability of the Chairman of the Board of Directors and the
Chief Executive Officer, the Chief Operating Officer shall have the duties
and powers of the Chief Executive Officer unless otherwise determined by the
Board of Directors.
Section 5. Powers and Duties of the President. The President shall
have such powers and perform such duties as may from time to time be
assigned to him by these By-Laws, the Board of Directors, the Chairman of
the Board of Directors or the Chief Executive Officer.
Section 6. Powers and Duties of the Executive Vice Presidents,
Senior Vice Presidents and Vice Presidents. Each Executive Vice President,
each Senior Vice President and each Vice President shall have such powers
and perform such duties as may from time to time be assigned to him by these
By-Laws, the Board of Directors, the Chairman of the Board of Directors, the
Chief Executive Officer or the President.
Section 7. Powers and Duties of the Controller. The Controller
shall be the principal officer in charge of the accounts of the Corporation,
and shall perform such duties as from time to time may be assigned to him by
the Board of Directors, the Chairman of the Board of Directors, the Chief
Executive Officer or the President.
Section 8. Powers and Duties of the Treasurer. The Treasurer shall
have custody of all the funds and securities of the Corporation which may
have come into his hands; when necessary or proper, he may endorse or cause
to be endorsed on behalf of the Corporation for collection, checks, notes
and other obligations and shall deposit the same to the credit of the
Corporation in such bank or banks or depository or depositories as may have
been designated by the Board of Directors or by any officer authorized by
the Board of Directors to make such designation; whenever required by the
Board of Directors he shall render a statement of the funds and securities
of the Corporation in his custody; and he shall perform all acts incident to
the position of Treasurer, subject to the control of the Board of Directors.
Section 9. Powers and Duties of the Secretary. The Secretary shall
keep the minutes of all meetings of the Board of Directors and the minutes
of all meetings of the stockholders in books provided for that purpose; he
shall attend to the giving or serving of all notices of the Corporation; he
may sign with the Chairman of the Board of Directors, the President, any
Executive Vice President, any Senior Vice President or any Vice President,
in the name of the Corporation, all contracts authorized by the Board of
Directors or by any committee of the Corporation having the requisite
authority and, when so ordered by the Board of Directors or such committee,
he shall affix the seal of the Corporation thereto; he shall have charge of
the stock certificate books, transfer books and stock ledgers and such other
books and papers as the Board of Directors shall direct, all of which shall
at all reasonable times be open to the examination of any Director, upon
application at the office of the Corporation during business hours; and he
shall in general perform all the duties incident to the office of Secretary,
subject to the control of the Board of Directors.
Section 10. Powers and Duties of Additional Officers. The Board of
Directors may from time to time by resolution delegate to any Assistant Vice
President or Vice Presidents, Assistant Controller or Controllers, any
Assistant Treasurer or Treasurers and/or any Assistant Secretary or
Secretaries, elected by the Board of Directors, any of the powers or duties
herein assigned to the Vice President, Controller, the Treasurer or the
Secretary, respectively.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the
name of the Corporation (i) by the Chairman of the Board of Directors, Chief
Executive Officer, the President or a Vice President and (ii) 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
stockholder in the Corporation.
Section 2. Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate, 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 such owner's legal representative, to
advertise the same in such manner as the Board of Directors shall require
and/or to give the Corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the Corporation on
account of the alleged loss, theft or destruction of such certificate or the
issuance of such new certificate.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by applicable law and in these
By-Laws. Transfers of stock shall be made on the books of the Corporation
only by the person named in the certificate or by such person's attorney
lawfully constituted in writing and upon the surrender of the certificate
therefor, properly endorsed for transfer and payment of all necessary
transfer taxes; provided, however, that such surrender and endorsement or
payment of taxes shall not be required in any case in which the officers of
the Corporation shall determine to waive such requirement. Every certificate
exchanged, returned or surrendered to the Corporation shall be marked
"Cancelled", with the date of cancellation, by the Secretary or Assistant
Secretary of the Corporation or the transfer agent thereof. No transfer of
stock shall be valid as against the Corporation for any purpose until it
shall have been entered in the stock records of the Corporation by an entry
showing from and to whom transferred.
Section 5. Dividend Record Date. In order that the Corporation may
determine the stockholders entitled to receive payment of any dividend or
other distribution or allotment of any rights or the stockholders 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, and which record
date shall be not more than sixty (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. Record Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the
owner of shares, and 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, except
as otherwise required by law.
Section 7. Transfer and Registry Agents. The Corporation may from
time to time maintain one or more transfer offices or agencies and registry
offices or agencies at such place or places as may be determined from time
to time by the Board of Directors.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at such
person's address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Without
limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the Corporation under
applicable law, the Certificate of Incorporation or these By-Laws shall be
effective if given by a form of electronic transmission if consented to by
the stockholder to whom the notice is given. Any such consent shall be
revocable by the stockholder by written notice to the Corporation. Any such
consent shall be deemed to be revoked if (i) the Corporation is unable to
deliver by electronic transmission two (2) consecutive notices by the
Corporation in accordance with such consent and (ii) such inability becomes
known to the Secretary or Assistant Secretary of the Corporation or to the
transfer agent, or other person responsible for the giving of notice;
provided, however, that the inadvertent failure to treat such inability as a
revocation shall not invalidate any meeting or other action. Notice given by
electronic transmission, as described above, shall be deemed given: (i) if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice; (ii) if by electronic mail,
when directed to an electronic mail address at which the stockholder has
consented to receive notice; (iii) if by a posting on an electronic network,
together with separate notice to the stockholder of such specific posting,
upon the later of (A) such posting and (B) the giving of such separate
notice; and (iv) if by any other form of electronic transmission, when
directed to the stockholder. Notice to directors or committee members may be
given personally or by telegram, telex, cable or by means of electronic
transmission.
Section 2. Waivers of Notice. Whenever any notice is required by
applicable law, the Certificate of Incorporation or these By-Laws, to be
given to any director, member of a committee or stockholder, a waiver
thereof in writing, signed by the person or persons entitled to notice, or a
waiver by electronic transmission by the person or persons entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of a person at a meeting, present in person
or represented by proxy, shall constitute a waiver of notice of such
meeting, except where the person attends the meeting for the express purpose
of objecting at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any Annual or Special
Meeting of Stockholders or any regular or special meeting of the directors
or members of a committee of directors need be specified in any written
waiver of notice unless so required by law, the Certificate of Incorporation
or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the requirements of the DGCL and the provisions of
the Certificate of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting of the Board of Directors (or
any action by written consent in lieu thereof in accordance with Section 8
of Article III hereof), and may be paid in cash, in property, or in shares
of the Corporation's capital stock. 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 Board of Directors from time to time, in its
absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for purchasing any of the shares of capital stock,
warrants, rights, options, bonds, debentures, notes, scrip or other
securities or evidences of indebtedness of the Corporation, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for any proper purpose, and the Board of Directors may
modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the
words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. Amendments. These By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted by the
stockholders or by the Board of Directors; provided, however, that notice of
such alteration, amendment, repeal or adoption of new By-Laws be contained
in the notice of such meeting of the stockholders or Board of Directors, as
the case may be. All such amendments must be approved by the affirmative
vote of the holders of at least eighty percent (80%) of the voting power of
the shares entitled to vote at an election of directors or by affirmative
vote of at least a majority of the entire Board of Directors.
Section 2. Entire Board of Directors. As used in this Article VIII
and in these By-Laws generally, the term "entire Board of Directors" means
the total number of directors which the Corporation would have if there were
no vacancies.
* * *
Adopted as of August 9, 2002