AMENDED AND RESTATED
BY-LAWS
of
DATAREX SYSTEMS INC.
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of stockholders of the
corporation for the election of directors and for the transaction of other
business shall be held at such time and such place within or without the State
of Delaware as shall be determined by the Board of Directors or the President
and stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
SECTION 2. SPECIAL MEETINGS. A special meeting of stockholders may be
called by the Board of Directors or the President, and shall be called by the
President, the Secretary or an Assistant Secretary at the request in writing
of one-third or more of the Directors then in office, or at the request in
writing of the holders of record of 20% or more of the outstanding shares of
the stock of the corporation entitled to vote at the meeting. Each special
meeting of stockholders shall be held at such time and place within or
without the State of Delaware as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof. Business transacted at
any special meeting of stockholders shall be limited to the purpose or
purposes stated in the notice of the meeting.
SECTION 3. NOTICE AND PURPOSE OF MEETINGS. Written notice at each
meeting of stockholders stating the place, date and hour of the meeting and, in
the case
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of a special meeting, in general terms, the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty days
before the meeting to each stockholder of record entitled to vote at the
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, with first-class postage thereon prepaid, directed to
each stockholder at his address as it appears on the records of the
corporation.
SECTION 4. PROCEDURE. At each meeting of stockholders the order of
business and all other matters of procedure may be determined by the person
presiding at the meeting.
SECTION 5. LIST OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares of the stock of the
corporation registered in the name of each stockholder. Such list shall be
open to examination of any stockholder for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 6. QUORUM. Except as otherwise required by law or the
certificate of incorporation, a quorum at all meetings of stockholders shall
consist of
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the holders of record of not less than a majority of the outstanding shares
of the stock of the corporation entitled to vote at the meeting, present in
person or represented by proxy, except when the stockholders are required to
vote by class, in which event the holders of record of not less than a
majority of the outstanding shares of the appropriate class shall be present
in person or represented by proxy.
SECTION 7. ADJOURNMENTS. The stockholders entitled to vote who
are present in person or represented by proxy at any meeting of stockholders,
whether or not a quorum shall be present at the meeting, shall have power by
a majority of the votes cast to adjourn the meeting from time to time without
notice other than announcement at the meeting of the time and place to which
the meeting is adjourned. At any adjourned meeting held without notice at
which a quorum shall be present any business may be transacted that might
have been transacted on the original date of the meeting. If the adjournment
is for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the adjourned
meeting.
SECTION 8. VOTING; PROXIES. Unless otherwise provided in the
certificate of incorporation, each stockholder of record shall be entitled
at every meeting of stockholders to one vote for each share of the stock of
the corporation standing in his or her own name on the record of stockholders
on the record date fixed for the meeting or, if no record date for the
meeting was fixed, on the date of the meeting. Each stockholder entitled to
vote at a meeting of stockholders or to express consent or dissent to
corporate action in writing without a meeting may act in person or persons or
may authorize another person to act for him or her by proxy, but no proxy
shall be
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voted or acted upon after three years from its date unless it provides for a
longer period.
Directors elected at any meeting of stockholders shall, except as
otherwise required by law, be elected by a plurality of the votes cast. All
other corporate action to be taken by vote of stockholders shall, except as
otherwise required by law, the certificate of incorporation or these by-laws,
be authorized by a majority of the votes cast. Unless otherwise provided in
the certificate of incorporation, the vote for directors shall be by ballot,
but the vote upon any other question before a meeting of stockholders shall
not be by ballot unless required by law or unless the person presiding at
such meeting shall so direct or unless any stockholder present in person or by
proxy and entitled to vote thereon shall so demand.
SECTION 9. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless
otherwise provided in the certificate of incorporation, any action required
to be taken at any annual or special meeting of stockholders, or any action
(including, without limitation, adoption, amendment or repeal of by-laws)
which may be taken at any annual or special meeting of stockholders, may be
taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding shares of the stock of the corporation having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
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SECTION 10. WAIVER OF NOTICE. Whenever notice is required by
law or these by-laws to be given to any stockholder, a written waiver
thereof, signed by such stockholder in person or by proxy, whether before or
after the time stated therein, shall be deemed equivalent to notice. The
attendance of any stockholder at a meeting in person or by proxy shall
constitute a waiver of notice of such meeting, except when the person attends
a 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 the stockholders need be
specified in any written waiver of notice.
SECTION 11. INSPECTORS OF ELECTION. The Board of Directors
may, in advance of any meeting of the stockholders, appoint one or more
inspectors to act at the meeting or any adjournment thereof. If inspectors
are not so appointed in advance of the meeting, the person presiding at such
meeting may, and on the request of any stockholder entitled to vote thereat
shall, appoint one or more inspectors. In case any inspector appointed fails
to appear or act, the vacancy may be filled by appointment made by the Board
of Directors in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector, before entering upon the discharge of his
or her duties, shall take and sign an oath faithfully to execute the duties
of inspector at such meeting with strict impartiality and according to the
best of his or her ability. No person who is a candidate for the office of
director of the corporation shall act as an inspector at any meeting of the
stockholders at which directors are elected.
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SECTION 12. DUTIES OF INSPECTORS OF ELECTION. When ever one
or more inspectors of election may be appointed as provided in these by-laws,
he, she or they shall determine the number of shares outstanding and entitled
to vote, the shares represented at the meeting, the existence of a quorum,
and the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots, or
consents, determine the result, and do such acts as are proper to conduct
the election or vote with fairness to all stockholders.
ARTICLE II
DIRECTORS
SECTION 1. GENERAL POWERS. The property, business and affairs
of the corporation shall be managed by or under the direction of its Board of
Directors.
SECTION 2. NUMBER AND QUALIFICATIONS. The Board of Directors
shall consist of one or more members. The exact number of directors shall be
fixed from time to time by action of the stockholders or by vote of a
majority of the entire Board of Directors.
SECTION 3. ELECTION AND TERM OF OFFICE. Except as otherwise
required by law or these by-laws, each director shall be elected at the
annual meeting of stockholders of the corporation and shall hold office until
the next annual meeting of stockholders and until his or her successor has
been elected and qualified, or until his or her earlier death, resignation or
removal.
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SECTION 4. RESIGNATION. Any director may resign at any time by
giving written notice to the corporation. Such resignation shall take effect
at the time specified therein; unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 5. REMOVAL OF DIRECTORS. Except as otherwise provided by
law, any director or the entire Board of Directors may be removed, with or
without cause, by the holders of sixty-six and two-thirds percent (66-2/3%) of
the shares of the stock of the corporation then entitled to vote at an
election of directors.
SECTION 6. VACANCIES. Newly created directorships and vacancies
in the Board of Directors, including vacancies resulting from the resignation
of directors effective immediately or at a future date or from the removal of
directors, with or without cause, may be filled by vote of the stockholders,
by vote of a majority of the directors then in office (including directors
whose resignations are effective at a future date), although less than a
quorum, or by the sole remaining director. Each director so chosen shall hold
office until the next annual meeting of stockholders and until his or her
successor has been elected and qualified, or until his or her earlier death,
resignation or removal. A vote to fill a vacancy or vacancies created by the
resignation or resignations of a director or directors effective at a future
date shall take effect when the resignation or resignations become effective.
SECTION 7. FIRST MEETING OF NEWLY ELECTED DIRECTORS. The first
meeting of the newly elected Board of Directors may be held immediately after
the annual meeting of stockholders and at the same place as the annual
meeting of stockholders, provided a quorum be present, and no notice of the
meeting shall be necessary. In the
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event the first meeting of the newly elected Board of Directors is not held
at said time and place, it shall be held as provided in Section 8 or 9 of
this Article II.
SECTION 8. REGULAR MEETINGS OF DIRECTORS. Regular meetings of
the Board of Directors may be held without notice at such time and such place
within or without the State of Delaware as may be fixed from time to time by
resolution of the Board of Directors. If any day fixed for a regular meeting
shall be a legal holiday at a place where the meeting is to be held, then the
meeting which would otherwise be held on that day shall be held at the same
hour on the next succeeding business day.
SECTION 9. SPECIAL MEETINGS OF DIRECTORS. A special meeting of
the Board of Directors may be called by the President, or, in the absence or
disability of the President, any Vice President, or by any two directors or
if there is only one director by that one director. Each special meeting of
the Board of Directors may be held at such time and such place within or
without the State of Delaware as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
SECTION 10. NOTICE OF SPECIAL MEETINGS. Notice of each special
meeting of the Board of Directors, stating the time and place thereof, shall
be given by the President, any Vice President, the Secretary, any Assistant
Secretary or any member of the Board of Directors, to each member of the
Board of Directors (a) not less than three days before the meeting by
depositing the notice in the United States mail, with first-class postage
thereon prepaid, directed to each member of the Board of Directors at the
address designated by him or her for such purpose (or, if none is designated,
at his or her last known address), or (b) not less than twenty-four hours
before the meeting by either (i) delivering the same to each member of the
Board of Directors personally,
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(ii) sending the same by telephone, telegraph, cable or wireless to the
address designated by him or her for such purpose (or, if none is designated,
to his or her last known address) or (iii) delivering the notice to the
address designated by him or her for such purpose (or, if none is
designated, to his or her last known address). The notice of any meeting of
the Board of Directors need not specify the purpose or purposes for which the
meeting is called, except as otherwise required by law or these by-laws.
SECTION 11. QUORUM AND ACTION BY THE BOARD. At all meetings of the
Board of Directors, except as otherwise required by law or these by-laws, a
quorum shall be required for the transaction of business and shall consist of
not less than a majority of the entire Board of Directors, and the vote of a
majority of the directors present shall decide any question that may come
before the meeting. A majority of the directors present, whether or not a
quorum is present, may adjourn any meeting to another time or place without
notice other than announcement at the meeting of the time and place to which
the meeting is adjourned.
SECTION 12. PROCEDURE. The order of business and all other matters
of procedure at every meeting of directors may be determined by the person
presiding at the meeting.
SECTION 13. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution adopted by vote of a majority of the entire Board of Directors,
designate one or more committees, each committee to consist of one or more of
its directors of the corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of any member or alternate member
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of a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member or
alternate member. Any such committee, to the extent provided in the resolution
of the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the property,
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority of the Board of Directors in
reference to amending the certificate of incorporation, adopting any
agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange of all or substantially all of the corporation's
property and assets, recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution, amending the by-laws of the
corporation, declaring a dividend or authorizing the issuance of stock. Each
such committee shall keep regular minutes of its proceedings and report the
same to the Board of Directors when required. A majority vote of all the
members of any such committee may fix its rules or procedure, determine its
action and fix the time and place within or without the State of Delaware for
its meetings and specify the number of members required to constitute a
quorum and what notice thereof, if any, shall be given, unless the Board of
Directors shall otherwise provide. The Board of Directors may at any time
fill vacancies in, change the membership of or discharge any such committee.
SECTION 14. COMPENSATION OF DIRECTORS. The Board of Directors shall
have the authority to fix the compensation of directors. The directors may be
paid
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their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of committees of the Board of
Directors may be allowed like compensation for attending committee meetings.
SECTION 15. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken by the Board of Directors or any committee thereof may
be taken without a meeting if all members of the Board of Directors or the
committee consent in writing to the adoption of a resolution authorizing the
action. The resolution and the written consents thereto by the members of the
Board of Directors or committee shall be filed with the minutes of the
proceedings of the Board of Directors or committee.
SECTION 16. PRESENT AT MEETING BY TELEPHONE. Members of the Board
of Directors or any committee thereof may participate in a meeting of the
Board of Directors or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting by such means shall
constitute presence in person at the meeting.
SECTION 17. WAIVER OF NOTICE. Whenever notice is required by law
or these by-laws to be given to any director, a written waiver thereof,
signed by such director, whether before or after the time stated therein,
shall be deemed equivalent to notice.
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ARTICLE III
OFFICERS
SECTION 1. OFFICERS. The Board of Directors shall annually, at the
first meeting of the Board of Directors after the annual meeting of
stockholders, elect a President, one or more Vice Presidents, a Secretary,
and a Treasurer. The Board of Directors may from time to time elect or
appoint such additional officers as it may determine. Such additional
officers shall have such authority and perform such duties as the Board of
Directors may for time to time prescribe.
SECTION 2. TERM OF OFFICE. The President, each Vice-President, the
Secretary and the Treasurer shall each, unless otherwise determined by the
Board of Directors, hold office until the first meeting of the Board of
Directors following the next annual meeting of stockholders and until his or
her successor has been elected and qualified, or until his or her earlier death,
resignation or removal. Each additional officer appointed or elected by the
Board of Directors shall hold office for such term as shall be determined
from time to time by the Board of Directors and until his or her successor
has been elected or appointed and qualified, or until his or her earlier
death, resignation or removal.
SECTION 3. REMOVAL. Any officer may be removed or have his or her
authority suspended by the Board of Directors at any time, with or without
cause.
SECTION 4. RESIGNATION. Any officer may resign at any time by
giving written notice to the corporation. Such resignation shall take effect
at the time specified therein; unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
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SECTION 5. VACANCIES. A vacancy in any office arising for any reason
may be filled by the Board of Directors.
SECTION 6. THE PRESIDENT. The President shall be the chief executive
officer of the corporation. He or she shall preside at all meetings of
stockholders and of the Board of Directors. He or she shall have the powers and
duties of immediate supervision and management of the corporation which usually
pertain to his or her office, and shall perform all such other duties as are
properly required of him or her by the Board of Directors.
SECTION 7. THE VICE PRESIDENTS. The Vice Presidents may be
designated by such title or titles as the Board of Directors may determine, and
each Vice President in such order of seniority as may be determined by the Board
of Directors shall, in the absence or disability of the President, or at his or
her request, perform the duties and exercise the powers of the President. Each
of the Vice Presidents also shall have such powers as usually pertain to his or
her office and shall perform such duties as usually pertain to his or her office
or as are properly required of him or her by the Board of Directors.
SECTION 8. THE SECRETARY AND ASSISTANT SECRETARIES. The Secretary
shall issue notices of all meetings of stockholders and of the Board of
Directors where notices of such meetings are required by law or the by-laws. He
or she shall attend meetings of stockholders and of the Board of Directors and
keep the minutes thereof in a book or books to be provided for that purpose. He
or she shall affix the corporate seal to and and sign such instruments as
require the seal and his or her signature and shall perform such other duties as
usually pertain to his or her office or as are properly required of him or her
by the Board of Directors.
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The Assistant Secretaries may, in the absence or disability of the
Secretary, or at his or her request or the request of the President, perform the
duties and exercise the powers of the Secretary, and shall perform such other
duties as the Board of Directors shall prescribe.
SECTION 9. THE TREASURER AND ASSISTANT TREASURERS. The Treasurer
shall have the care and custody of all the moneys and securities of the
corporation. He or she shall cause to be entered in books of the corporation to
be kept for that purpose full and accurate accounts of all moneys received by
him or her and paid by him or her on account of the corporation. He or she
shall make and sign such reports, statements and instruments as may be required
of him or her by the Board of Directors or by the Laws of the United States or
of any state, country or other jurisdiction in which the corporation transacts
business, and shall perform such other duties as usually pertain to his or her
office or as are properly required of him or her by the Board of Directors.
The Assistant Treasurers may, in the absence or disability of the
Treasurer, or at his or her request or the request of the President, perform the
duties and exercise the powers of the Treasurer, and shall perform such other
duties as the Board of Directors shall prescribe.
SECTION 10. OFFICERS HOLDING TWO OR MORE OFFICES. Any two or more
offices may be held by the same person but no officer shall execute, acknowledge
or verify any instrument in more than one capacity if such instrument be
required by law or otherwise to be executed or verified by two or more officers.
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SECTION 11. DUTIES OF OFFICERS MAY BE DELEGATED. In case of the
absence or disability of any officer of the corporation, or in case of a
vacancy in any office or for any other reason that the Board of Directors may
deem sufficient, the Board of Directors, except as otherwise provided by law,
may temporarily delegate the powers or duties of any officer to any other
officer or to any director.
SECTION 12. COMPENSATION. The compensation of all officers shall
be determined by the Board of Directors. The compensation of all other
employees shall be fixed by the President within such limits as may be
prescribed by the Board of Directors.
SECTION 13. SECURITY. The corporation may secure the fidelity of
any or all of its officers or agents by bond or otherwise, as may be required
from time to time by the Board of Directors.
ARTICLE IV
INDEMNIFICATION OF OFFICERS AND DIRECTORS
SECTION 1. RIGHT OF INDEMNIFICATION. Every person now or hereafter
serving as a director or officer of the corporation and every such director
or officer serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, shall be indemnified by the corporation in accordance
with and to the fullest extent permitted by law for the defense of, or in
connection with, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative.
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SECTION 2. EXPENSES. Expenses incurred by an officer or director
in defending a civil or criminal action, suit or proceeding may be paid by
the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the corporation as authorized in
this Article IV.
SECTION 3. OTHER RIGHTS OF INDEMNIFICATION. The right of
indemnification herein provided shall not be deemed exclusive of any other
rights to which any such director or officer may now or hereafter be entitled
under any by-law, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his or her 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 or officer and shall inure to the
benefit of the heirs, executors and administrators of such person.
ARTICLE V
SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES. Every stockholder of the corporation
shall be entitled to a certificate or certificates, to be in such form as the
Board of Directors shall prescribe, certifying the number of shares of the
stock of the corporation owned by him or her.
SECTION 2. ISSUANCE OF CERTIFICATES. Certificates representing
shares of stock of the corporation shall be numbered in the order in which
they are issued and shall be signed by the President or any Vice President
and the Treasurer or an Assistant
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Treasurer or the Secretary or an Assistant Secretary of the corporation. Any of
or all the signatures on the certificate may be a facsimile. In case any
officer of the corporation who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer before such
certificate is issued, such certificate may nevertheless be issued by the
corporation with the same effect as if he or she were such officer at the date
of issue.
SECTION 3. MORE THAN ONE CLASS OF STOCK. If the corporation shall
be authorized to issue more than one class of stock or more than one series
of any class, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitation or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the
face or back of the certificate which the corporation shall issue to
represent such class or series of stock, provided that, except for
restrictions on transfer of stock (as provided in Section 202 of the General
Corporation Law of Delaware). In lieu of the foregoing requirements, there
may be set forth on the face or back of the certificate which the corporation
shall issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
SECTION 4. STOCK LEDGER. A record shall be kept by the Secretary, by
the transfer agent, or by any other officer, employee or agent designated by the
Board of Directors, of the name of the individual, firm or corporation holding
the shares of the
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stock of the corporation represented by each certificate, the number of shares
represented by such certificate, the date of issue thereof and, in case of
cancellation, the date of cancellation thereof.
SECTION 5. TRANSFER OF SHARES. Upon surrender to the corporation or
the transfer agent of the corporation of a certificate representing shares of
the stock of the corporation duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. Whenever any
transfer of shares shall be made for collateral security, and not absolutely, it
shall be so expressed in the entry of the transfer if, when the certificates are
presented to the corporation for transfer, both the transferor and transferee
request the corporation to do so.
SECTION 6. REGISTERED STOCKHOLDERS. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares of the stock of the corporation to receive dividends, and to
vote as such owner, and to hold liable for call and assignments a person
registered on its books as the owner of such shares, and shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
SECTION 7. REGULATIONS. The Board of Directors may make such rules
and regulations as it may deem expedient, not inconsistent with law, the
certificate of incorporation or these by-laws, concerning the issue, transfer
and registration of certificates representing shares of the stock of the
corporation. It may appoint, or
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authorize any officer or officers to appoint, one or more transfer clerks or
one or more transfer agents or one or more registrars, and may require all
such certificates to bear the signature or signatures of any of them.
SECTION 8. LOST, STOLEN AND DESTROYED CERTIFICATES. The Board of
Directors may in its discretion cause a new certificate representing shares
of the stock of the corporation to be issued in place of any certificate
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon satisfactory proof of that fact by the person claiming the
certificate to have been lost, stolen or destroyed: but the Board of
Directors may in its discretion refuse to issue a new certificate except upon
the order of a court having jurisdiction to such matters. 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 his legal
representative, to give the corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
SECTION 9. FIXING OF RECORD DATE. 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 shares
of the stock of the corporation, or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a
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record date, which shall not be more than sixty or less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to notice of and to vote at such meeting of
stockholders and any adjournment thereof, or to receive payment of such
dividend or such other distribution or such allotment of rights, or to
exercise such rights in respect of any such change, conversion or exchange of
shares of the stock of the corporation, or to participate in such other
action, or to give such consent, as the case may be, notwithstanding any
transfer of any shares of the stock of the corporation on the books of the
corporation after any such record date so fixed. A determination of
stockholders of record entitled to notice of or to vote at any 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.
If no record date is fixed by the Board of Directors, (a) the
record date for determining stockholders entitled to notice of or to vote at
any 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 by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed, 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.
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ARTICLE VI
FINANCES
SECTION 1. CORPORATE FUNDS. The funds of the corporation shall be
deposited in its name with such banks, trust companies or other depositories
as the Board of Directors may from time to time designate. All checks, notes,
drafts and other negotiable instruments of the corporation shall be signed by
such officer or officers, employee or employees, agent or agents as the Board
of Directors may from time to time designate. No officers, employees or
agents of the corporation, alone or with others, shall have power to make any
checks, notes, drafts or other negotiable instruments in the name of the
corporation or to bind the corporation thereby, except as provided in this
Section 1.
SECTION 2. FISCAL YEAR. The fiscal year of the corporation shall be
the calendar year unless otherwise provided by the Board of Directors.
SECTION 3. DIVIDENDS RESERVES. Dividends upon the stock of the
corporation, payable out of funds legally available therefor, may be declared
by the Board of Directors at any regular or special meeting. Dividends may be
paid in cash, in property, or in shares of the stock of the corporation.
Before declaring any dividend, the Board of Directors may set aside out of
any funds of the corporation legally available for dividends such sum or sums
as the Board of Directors from time to time in its discretion shall deem
proper as a reserve for working capital, for contingencies, for equalizing
dividends or for such other purpose or purposes as the Board of Directors
shall deem conducive to the interests of the corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in which it
was created.
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SECTION 4. LOANS TO EMPLOYEES AND OFFICERS. The corporation may lend
money to, or guarantee any obligation of, or otherwise assist any officer or
other employee of the corporation, including any officer or employee who is
also a director of the corporation, whenever in the judgment of the Board of
Directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with
or without interest, and may be unsecured, or secured in such manner as the
Board of Directors shall approve, including, without limitation, a pledge of
shares of stock of the corporation.
ARTICLE VII
CORPORATE SEAL
SECTION 1. FORM OF SEAL. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its incorporation and the
words "Corporate Seal" and "Delaware", and shall otherwise be in such form as
shall be prescribed from time to time by the Board of Directors.
SECTION 2. USE OF SEAL. The corporate seal may be used by causing it
or a facsimile thereof to be impressed or affixed or reproduced in any manner.
ARTICLE VIII
AMENDMENTS
SECTION 1. PROCEDURES FOR AMENDING BY LAWS. By-laws of the
corporation may be adopted, amended or repealed (a) at any meeting of
stockholders, notice of which shall have referred to the proposed action, by
the holders of sixty-six and two-thirds percent (66-2/3%) of the shares of
the corporation then entitled to vote at
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an election of directors, or (b), if the power to adopt, amend or repeal
by-laws shall have been conferred upon the directors in the certificate of
incorporation, at any meeting of the Board of Directors, notice of which
shall have referred to the proposed action, by the vote of a majority of the
entire Board of Directors.