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8-K - FORM 8-K - COMPELLENT TECHNOLOGIES INC | c62761e8vk.htm |
EX-3.1 - EX-3.1 - COMPELLENT TECHNOLOGIES INC | c62761exv3w1.htm |
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
COMPELLENT TECHNOLOGIES, INC.
TABLE OF CONTENTS
Page | ||||
ARTICLE I Meetings of Stockholders |
1 | |||
Section 1.1. Annual Meetings |
1 | |||
Section 1.2. Special Meetings |
1 | |||
Section 1.3. Notice of Meeting |
1 | |||
Section 1.4. Quorum |
1 | |||
Section 1.5. Adjournments |
1 | |||
Section 1.6. Voting |
2 | |||
Section 1.7. Proxies |
2 | |||
Section 1.8. Judges of Election |
2 | |||
ARTICLE II Board of Directors |
2 | |||
Section 2.1. Number |
2 | |||
Section 2.2. Election and Term of Office |
2 | |||
Section 2.3. Vacancies and Additional Directorships |
2 | |||
Section 2.4. Regular Meetings |
2 | |||
Section 2.5. Special Meetings |
2 | |||
Section 2.6. Waiver of Notice |
3 | |||
Section 2.7. Quorum and Manner of Acting |
3 | |||
Section 2.8. Telephonic Meetings |
3 | |||
Section 2.9. Resignation of Directors |
3 | |||
Section 2.10. Removal of Directors |
3 | |||
Section 2.11. Compensation of Directors |
3 | |||
Section 2.12. General Powers |
4 | |||
ARTICLE III Committees of the Board |
4 | |||
Section 3.1. Designation, Power, Alternate Members and Term of Office |
4 | |||
Section 3.2. Executive Committee |
4 | |||
Section 3.3. Committee Rules |
5 | |||
Section 3.4. Resignations |
5 | |||
Section 3.5. Removal |
5 | |||
Section 3.6. Vacancies |
5 | |||
Section 3.7. Compensation |
5 | |||
ARTICLE IV Officers |
5 | |||
Section 4.1. Officers |
5 | |||
Section 4.2. Election, Term of Office and Qualifications |
5 | |||
Section 4.3. Subordinate Officers and Agents |
5 | |||
Section 4.4. Resignations |
5 | |||
Section 4.5. Removal |
6 | |||
Section 4.6. Vacancies |
6 | |||
Section 4.7. General Duties of Officers |
6 | |||
Section 4.8. Salaries |
6 |
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Page | ||||
ARTICLE V Execution of Instruments and Deposit of Corporate Funds |
6 | |||
Section 5.1. Execution of Instruments Generally |
6 | |||
Section 5.2. Borrowing |
6 | |||
Section 5.3. Deposits |
6 | |||
Section 5.4. Checks, Drafts, etc |
7 | |||
Section 5.5. Proxies |
7 | |||
Section 5.6. Other Contracts and Instruments |
7 | |||
ARTICLE VI Record Dates |
7 | |||
ARTICLE VII Action Without A Meeting |
7 | |||
ARTICLE VIII Indemnification |
8 | |||
ARTICLE IX Miscellaneous |
10 | |||
Section 9.1. Corporate Seal |
10 | |||
Section 9.2. Fiscal Year |
10 | |||
Section 9.3. Form of Records |
10 | |||
Section 9.4. Reliance upon Books and Records |
11 | |||
Section 9.5. Certificate of Incorporation Governs |
11 | |||
Section 9.6. Severability |
11 | |||
ARTICLE X Amendments |
11 |
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ARTICLE I
Meetings of Stockholders
Section 1.1. Annual Meetings. The annual meeting of the stockholders for the election
of directors and for the transaction of such other business as properly may come before such
meeting shall be held each year on such date, and at such time and place within or without the
State of Delaware, as may be designated by the Board of Directors of the Corporation (the Board).
Section 1.2. Special Meetings. Special meetings of the stockholders for any proper
purpose or purposes may be called at any time by the Board to be held on such date, and at such
time and place within or without the State of Delaware, as the Board shall direct. A special
meeting of the stockholders shall be called by the president or the secretary of the Corporation
whenever stockholders owning a majority of the shares of the Corporation then issued and
outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation
shall make application therefor in writing. Any such written request shall state a proper purpose
or purposes of the meeting and shall be delivered to the president or the secretary of the
Corporation.
Section 1.3. Notice of Meeting. Written notice, signed by the president, the
secretary or any assistant secretary of the Corporation, of every meeting of stockholders stating
the date and time when, and the place where, such meeting is to be held, shall be delivered either
personally or by mail to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of such meeting, except as otherwise provided by law. The
purpose or purposes for which such meeting is called may, in the case of an annual meeting, and
shall in the case of a special meeting, also be stated in such notice. If mailed, such notice
shall be directed to a stockholder at such stockholders address as it shall appear on the stock
books of the Corporation, unless such stockholder shall have filed with the president or secretary
of the Corporation a written request that notices intended for such stockholder be mailed to some
other address, in which case it shall be mailed to the address designated in such request.
Whenever any notice is required to be given under the provisions of the General Corporation Law of
the State of Delaware, the Certificate of Incorporation or these Bylaws, a waiver thereof, signed
by the stockholder entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent thereto. Attendance of a stockholder at the meeting shall be deemed
equivalent to a written waiver of notice of such meeting.
Section 1.4. Quorum. The presence at any meeting of stockholders, in person or by
proxy, of the holders of record of a majority of the shares then issued and outstanding and
entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of
business, except as otherwise provided by law.
Section 1.5. Adjournments. In the absence of a quorum, a majority in interest of the
stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to
vote is present in person or by proxy, any officer entitled to preside at or act as secretary of a
meeting of stockholders, may adjourn such meeting from time to time until a quorum shall be
present.
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Section 1.6. Voting. Directors shall be chosen by a plurality of the votes cast at
the election, and, except as otherwise provided by law or by the Certificate of Incorporation, all
other questions shall be determined by a majority of the votes cast on such question.
Section 1.7. Proxies. Any stockholder entitled to vote may vote by proxy, provided
that the instrument authorizing such proxy to act shall have been executed in writing (which shall
include telegraphing or cabling) by the stockholder himself or by such stockholders duly
authorized attorney.
Section 1.8. Judges of Election. The Board may appoint judges of election to serve at
any election of directors and at balloting on any other matter that may properly come before a
meeting of stockholders. If no such appointment shall be made, or if any of the judges so
appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made
by the presiding officer at the meeting.
ARTICLE II
Board of Directors
Section 2.1. Number. The number of directors which shall constitute the whole Board
shall be fixed from time to time by resolution of the Board or stockholders (any such resolution of
either the Board or stockholders being subject to any later resolution of either of them). The
Board shall consist of three directors until changed as herein provided.
Section 2.2. Election and Term of Office. Directors shall be elected at the annual
meeting of the stockholders, save for the Board shall initially consist of the person or persons
designated by the sole incorporator or named in the Corporations initial Certificate of
Incorporation and vacancies as may occur as provided in Section 2.3. Each director (whether
elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until such
directors successor shall have been elected and qualified or until such directors earlier death,
resignation or removal in the manner hereinafter provided.
Section 2.3. Vacancies and Additional Directorships. If any vacancy shall occur among
the directors by reason of death, resignation or removal, or as the result of an increase in the
number of directorships, a majority of the directors then in office, or a sole remaining director,
though less than a quorum, may fill any such vacancy.
Section 2.4. Regular Meetings. Regular meetings of the Board may be held at such
places, within or outside the State of Delaware, and at such times as the Board may from time to
time determine. Notice of regular meetings need not be given if the dates, times and places
thereof are fixed by resolution of the Board.
Section 2.5. Special Meetings. Special meetings of the Board shall be held upon call
by or at the direction of the president or the secretary of the Corporation. Except as otherwise
required by law, notice of each special meeting shall be given, orally, in writing or by electronic
transmission (including electronic mail), by the person or persons calling the meeting to each
director at least four (4) days before the meeting if the notice is mailed, or at least twenty-four
(24) hours before the meeting if such notice is given by telex, facsimile
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transmission, telegram, radio, cable, telephone, hand delivery or other means of electronic
transmission. Such notice shall state the time and place of such meeting, but need not state the
purposes thereof, unless otherwise required by law, the Certificate of Incorporation or these
Bylaws.
Section 2.6. Waiver of Notice. Whenever any notice is required to be given under the
provisions of the General Corporation Law of the State of Delaware, the Certificate of
Incorporation or these Bylaws, a waiver thereof, signed by the director entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of
a director at a meeting shall be deemed equivalent to a written waiver of notice of such meeting.
Section 2.7. Quorum and Manner of Acting. At each meeting of the Board the presence
of a majority of the total number of members of the Board as constituted from time to time shall be
necessary and sufficient to constitute a quorum for the transaction of business, except that when
the Board consists of one or two directors, then the one or two directors, respectively, shall
constitute a quorum. In the absence of a quorum, a majority of those present at the time and place
of any meeting may adjourn the meeting from time to time until a quorum shall be present and the
meeting may be held as so adjourned without further notice or waiver. A majority of those present
at any meeting at which a quorum is present may decide any question brought before such meeting,
except as otherwise provided by law, the Certificate of Incorporation or these Bylaws. The Board
may also act without a meeting so long as such action is taken with the unanimous written consent
of the Board.
Section 2.8. Telephonic Meetings. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the Board, or any committee designated by the Board, may
participate in a meeting of the Board, or such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 2.9. Resignation of Directors. Any director may resign at any time by giving
written notice of such resignation to the Board. Unless otherwise specified in such notice, such
resignation shall take effect upon receipt thereof by the Board or any such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
Section 2.10. Removal of Directors. At any special meeting of the stockholders, duly
called as provided in these Bylaws, any director or directors may be removed from office, either
with or without cause, as provided by law. At such meeting a successor or successors may be
elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled
by the directors as provided in Section 2.3.
Section 2.11. Compensation of Directors. Directors may receive such reasonable
compensation for their services whether in the form of salary or a fixed fee for attendance at
meetings, with expenses, if any, as the Board may from time to time determine. Nothing herein
contained shall be construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
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Section 2.12. General Powers. The Board shall have all powers necessary or
appropriate to the management of the business and affairs of the Corporation, and, in addition to
the power and authority conferred by these Bylaws, may exercise all powers of the Corporation and
do all such lawful acts and things as are not by statute, these Bylaws or the Certificate of
Incorporation directed or required to be exercised or done by the stockholders.
Notwithstanding anything in these Bylaws to the contrary, except to the extent prohibited by
law, the Board shall have the right (which, to the extent exercised, shall be exclusive) to
establish the rights, powers, duties, rules and procedures that from time to time shall govern the
Board and each of its members, including without limitation, the vote required for any action by
the Board, and that from time to time shall affect the Directors power to manage the business and
affairs of the Corporation; and no Bylaw shall be adopted by stockholders which shall impair or
impede the implementation of the foregoing.
ARTICLE III
Committees of the Board
Section 3.1. Designation, Power, Alternate Members and Term of Office. The Board may,
by resolution passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. Any such committee, to
the extent provided in such resolution and permitted by law, shall have and may exercise all the
powers and authority of the Board in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation or a facsimile thereof to be affixed to or reproduced
on all such papers as said committee shall designate. The Board may designate one or more
directors as alternate members of any committee who, in the order specified by the Board, may
replace any absent or disqualified member at any meeting of such committee. If at a meeting of any
committee one or more of the members thereof should be absent or disqualified, and if either the
Board has not so designated any alternate member or members, or the number of absent or
disqualified members exceeds the number of alternate members who are present at such meeting, then
the member or members of such committee (including alternates) present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint
another director to act at such meeting in the place of any such absent or disqualified member.
The term of office of the members of each committee shall be as fixed from time to time by the
Board, subject to these Bylaws; provided, however, that any committee member who
ceases to be a member of the Board shall ipso facto cease to be a committee member.
Each committee shall appoint a secretary, who may be a Director or an officer of the Corporation.
Section 3.2. Executive Committee. If an Executive Committee is designated by the
Board in accordance with the provisions of Section 3.1 hereof, the Executive Committee shall have
and may exercise all the powers and authority of the Board in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but the Executive Committee shall not have power or authority in
reference to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially
all of the Corporations property and assets, recommending to the stockholders a
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dissolution of the Corporation or a revocation of a dissolution, amending the Bylaws of the
Corporation, declaring a dividend or authorizing the issuance of stock. The provisions of Article
III of these Bylaws shall apply to the Executive Committee.
Section 3.3. Committee Rules. Unless the Board otherwise provides, each committee
designated by the Board may make, alter and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same manner as the Board
conducts its business pursuant to Article II of these Bylaws.
Section 3.4. Resignations. Any member of a committee may resign at any time by giving
written notice of such resignation to the Board. Unless otherwise specified in such notice, such
resignation shall take effect upon receipt thereof by the Board or any such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
Section 3.5. Removal. Any member of any committee may be removed at any time with or
without cause by the Board.
Section 3.6. Vacancies. If any vacancy shall occur in any committee by reason of
death, resignation, disqualification, removal or otherwise, the remaining member or members of such
committee, so long as a quorum is present, may continue to act until such vacancy is filled by the
Board.
Section 3.7. Compensation. Committee members may receive such reasonable compensation
for their services as such, whether in the form of salary or a fixed fee for attendance at
meetings, with expenses, if any, as the Board may from time to time determine. Nothing herein
contained shall be construed to preclude any committee member from serving the Corporation in any
other capacity and receiving compensation therefor.
ARTICLE IV
Officers
Section 4.1. Officers. The Corporation shall have such officers as are appointed from
time to time by the Board.
Section 4.2. Election, Term of Office and Qualifications. Each officer (except such
officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by
the Board. Each such officer shall hold such office until such officers successor shall have been
elected and shall qualify, or until such officers death, or until such officer shall have resigned
in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section
4.5.
Section 4.3. Subordinate Officers and Agents. The Board may delegate to any officer
or agent the power to appoint any subordinate officers or agents and to prescribe their respective
terms of office, authorities and duties.
Section 4.4. Resignations. Any officer may resign at any time by giving written
notice of such resignation to the Board. Unless otherwise specified in such written
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notice, such resignation shall take effect upon receipt thereof by the Board, and the
acceptance of such resignation shall not be necessary to make it effective.
Section 4.5. Removal. Any officer may be removed with or without cause at any meeting
of the Board by affirmative vote of a majority of the directors then in office. Any officer or
agent appointed in accordance with the provisions of Section 4.3 may be removed with or without
cause at any meeting of the Board by affirmative vote of a majority of the directors present at
such meeting, or at any time by any superior officer or agent upon whom such power of removal shall
have been conferred by the Board.
Section 4.6. Vacancies. A vacancy in any office by reason of death, resignation,
removal, disqualification or any other cause shall be filled for the unexpired portion of the term
in the manner prescribed by these Bylaws for regular election or appointment to such office.
Section 4.7. General Duties of Officers. Each officer shall perform those duties and
have such powers as from time to time may be assigned to him by the Board.
Section 4.8. Salaries. The salaries of the officers of the Corporation shall be fixed
from time to time by the Board, except that the Board may delegate to any person the power to fix
the salaries or other compensation of any officers or agents appointed in accordance with the
provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of
the fact that such officer is also a director of the Corporation.
ARTICLE V
Execution of Instruments and Deposit of Corporate Funds
Section 5.1. Execution of Instruments Generally. The Board may authorize any officer
or officers, or agent or agents, to enter into any contract or execute and deliver any instrument
in the name and on behalf of the Corporation, and such authorization may be general or confined to
specific instances.
Section 5.2. Borrowing. No loans or advances shall be obtained or contracted for, by
or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and
except as authorized by the Board. Such authorization may be general or confined to specific
instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and
advances for the Corporation, and for such loans and advances may make, execute and deliver
promissory notes, bonds, or other evidences of indebtedness of the Corporation. Any officer or
agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security
for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation,
any and all stocks, bonds, other securities and other personal property at any time held by the
Corporation, and to that end may endorse, assign and deliver the same and do every act and thing
necessary or proper in connection therewith.
Section 5.3. Deposits. All funds of the Corporation not otherwise employed shall be
deposited from time to time to its credit in such banks or trust companies or with such bankers or
other depositaries as the Board may select, or as may be selected by any officer or
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officers or agent or agents authorized so to do by the Board. Endorsements for deposit to the
credit of the Corporation in any of its duly authorized depositaries shall be made in such manner
as the Board from time to time may determine.
Section 5.4. Checks, Drafts, etc. All checks, drafts or other orders for the payment
of money, and all notes or other evidences of indebtedness issued in the name of the Corporation,
shall be signed by such officer or officers or agent or agents of the Corporation, and in such
manner, as from time to time shall be determined by the Board.
Section 5.5. Proxies. Proxies to vote with respect to shares of stock of other
corporations owned by or standing in the name of the Corporation may be executed and delivered from
time to time on behalf of the Corporation by the President or by any other person or persons
thereunto authorized by the Board.
Section 5.6. Other Contracts and Instruments. All other contracts and instruments
binding the Corporation shall be executed in the name and on the behalf of the Corporation by those
officers, employees or agents of the Corporation as may be authorized by the Board. That
authorization may be general or confirmed to specific instances.
ARTICLE VI
Record Dates
Section 6.1 In order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful action, the Board
may fix, in advance, a record date, which shall be not more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other action. Only those
stockholders of record on the date so fixed shall be entitled to any of the foregoing rights,
notwithstanding the transfer of any such stock on the books of the Corporation after any such
record date fixed by the Board.
ARTICLE VII
Action Without A Meeting
Section 7.1 Any action which might have been taken under these Bylaws by a vote of the
stockholders at a meeting thereof 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 individually signed and
dated by the holders of outstanding shares of 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, provided that no written
consent will be effective unless the necessary number of written consents is delivered to the
Corporation within sixty days of the earliest delivered consent to the Corporation, and
provided further that prompt notice shall be given to those stockholders who
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have not so consented if less than unanimous written consent is obtained. Any action
which might have been taken under these Bylaws by vote of the directors at any meeting of the Board
or any committee thereof may be taken without a meeting if all the members of the Board or such
committee, as the case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of the Board or such committee.
ARTICLE VIII
Indemnification
Section 8.1 The Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 8.2 The Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys fees) actually and
reasonably incurred by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the Corporation unless and only to the
extent that the Court of Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper.
Section 8.3 To the extent that a director, officer, employee or agent of the Corporation shall
be successful on the merits or otherwise in defense of any action, suit or proceeding referred to
in Sections 8.1 and 8.2 or in defense of any claim, issue or matter therein,
8
he shall be indemnified against expenses (including attorneys fees) actually and reasonably
incurred by him in connection therewith.
Section 8.4 Any indemnification under Sections 8.1 and 8.2 (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a determination that
indemnification of director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 8.1 and 8.2. Such determination
shall be made (a) by the Board by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (c) by the stockholders. The Corporation, acting through its Board or
otherwise, shall cause such determination to be made if so requested by any person who is
indemnifiable under this Article VIII.
Section 8.5 Expenses incurred 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
as authorized by the Board in the manner provided in Section 8.4 upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in
this Article VIII.
Section 8.6 The indemnification provided by this Article VIII shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person.
Section 8.7 The Board may authorize, by a vote of a majority of a quorum of the Board, the
Corporation to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the provisions of this Article VIII.
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Section 8.8 The Corporation shall be required to indemnify a person in connection with an
action, suit or proceeding (or part thereof) initiated by such person only if the action, suit or
proceeding (or part thereof) was authorized by the Board of the Corporation.
Section 8.9 The Corporation hereby assumes and agrees to perform all rights to
indemnification and advancement of expenses existing in favor of the current and former directors
and officers of the Corporation as of immediately before the effective time of the Merger (as defined
below), as provided in the Corporations bylaws that were in effect as of December
12, 2010. Merger means the merger of Dell Trinity Holdings Corp. with and into the Corporation,
as contemplated by the Agreement and Plan of Merger, dated as of December 12, 2010, among Dell
International L.L.C., Dell Trinity Holdings Corp. and the Corporation.
ARTICLE IX
Miscellaneous
Section 9.1. Corporate Seal. The Board may provide a corporate seal, which may have
the name of the Corporation and words and figures denoting its organization under the laws of the
State of Delaware and the year thereof and shall otherwise be in such form as may be approved from
time to time by the Board.
Section 9.2. Fiscal Year. The fiscal year of the Corporation shall be determined by
resolution of the Board.
Section 9.3. Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account and minute books, may
be kept on or by means of, or be in the form of, diskettes, CDs, or any other information storage
device or method, provided that the records so kept can be converted into clearly legible paper
form within a reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect such records pursuant to any provision of the Delaware
General Corporation Law.
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Section 9.4. Reliance upon Books and Records. A member of the Board, or a member of
any committee designated by the Board shall, in the performance of such persons duties, be fully
protected in relying in good faith upon records of the Corporation and upon such information,
opinions, reports or statements presented to the Corporation by any of the Corporations officers
or employees, or committees of the Board, or by any other person as to matters the member
reasonably believes are within such other persons professional or expert competence and who has
been selected with reasonable care by or on behalf of the Corporation.
Section 9.5. Certificate of Incorporation Governs. In the event of any conflict
between the provisions of the Certificate of Incorporation and Bylaws, the provisions of the
Certificate of Incorporation shall govern.
Section 9.6. Severability. If any provision of these Bylaws shall be held to be
invalid, illegal, unenforceable or in conflict with the provisions of the Certificate of
Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible
consistent with such holding and the remaining provisions of these Bylaws (including without
limitation, all portions of any section of these Bylaws containing any such provision held to be
invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not
themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation)
shall remain in full force and effect.
ARTICLE X
Amendments
Section 10.1 All Bylaws of the Corporation may be amended or repealed, and new Bylaws may be
made, by an affirmative majority of the votes cast at any annual or special stockholders meeting
by holders of outstanding shares of stock of the Corporation entitled to vote, or by an affirmative
vote of a majority of the directors present at any organizational, regular, or special meeting of
the Board.
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