Exhibit 1.3
BYLAWS
OF
BUHRMANN US INC.
ARTICLE I
IDENTIFICATION
Section
1. Name.
The name of the corporation is Buhrmann US Inc. (the “Corporation”).
Section
2. Seal.
Upon the seal of the Corporation shall appear the name of the
Corporation and the state and year of incorporation and the words “Corporate
Seal.”
Section
3. Offices.
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation may also have other offices
at such other places, either within or without the State of Delaware, as the
Board of Directors of the Corporation may determine or as the activities of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section
1. Place of Meetings.
Meetings of the stockholders shall be held at such place, either within
or without the State of Delaware, as may be fixed from time to time by the
Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section
2. Annual Meeting.
An annual meeting of the stockholders for the election of directors and
the transaction of such other business as may properly come before the meeting
shall be held each year on such date in the first five months of the
Corporation’s fiscal year as shall be designated by the President, or in the
absence of such designation, on the first Tuesday of the sixth month of the
fiscal year, if not a legal holiday, and if a legal holiday, then on the next
succeeding business day, or on such other date and time as shall be designated
from time to time by the Board of Directors.
Section
3. Special Meeting.
Special meetings of the stockholders may be called by the Board of
Directors or the President and shall be called by the President or Secretary at
the request in writing of a majority of the Board of Directors. Such request shall state the purpose or
purposes of the proposed meeting.
Section
4. Notice and Waiver.
Written notice of a meeting of stockholders, stating the place, day and
hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days prior to such meeting to each stockholder of record
entitled to vote at such meeting by
leaving such notice
with such person personally or by transmitting such notice with confirmed
delivery (including, by telex, telecopier, cable or other form of recorded
communication, provided that delivery of such notice in written form is
confirmed) to such person’s residence or usual place of business, or by
depositing such notice in the mails in a postage prepaid envelope addressed to
such person at such person’s post office address as it appears on the corporate
records of the Corporation. Notice of any
meeting of stockholders may be waived in writing by any stockholders entitled
to vote at such meeting. Attendance at a
meeting by any stockholder 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.
Section
5. Stockholder List.
The Secretary or such other officer who shall have been given charge of
the stock ledger of the Corporation shall, at least ten days before each
meeting of stockholders, prepare a complete alphabetically arranged list of the
stockholders entitled to vote at the meeting, with the number of shares held by
each. Said 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 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 be available for inspection at
the meeting. Upon the willful neglect or
refusal of the directors to produce such a list at any meeting for the election
of directors, they shall be ineligible for election to any office at such
meeting.
Section
6. Quorum and Required Vote.
The holders of a majority of the stock entitled to vote, represented in
person or by proxy, shall constitute a quorum at a meeting of stockholders
except as otherwise specially provided by these Bylaws, by the Certificate of
Incorporation of the Corporation or by applicable law. The affirmative vote, at a meeting of stockholders
duly held and at which a quorum is present, of a majority of the voting power
of the shares represented at such meeting which are entitled to vote on the
subject matter shall be the act of the stockholders, except as is otherwise
specially provided by these Bylaws, by the Certificate of Incorporation of the
Corporation or by applicable law. If
less than a majority of such outstanding shares are represented at a meeting, a
majority of the shares so represented may adjourn the meeting from time to time
without further notice of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may
transact any business which might have been transacted at the original
meeting. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section
7. Voting.
Unless otherwise provided in the Certificate of Incorporation of the
Corporation, each holder of voting stock shall be entitled to vote in person or
by proxy at each meeting and shall have one vote for each share of voting stock
registered in such person’s name. However,
no proxy shall be voted three years after the date thereof, unless the proxy
provides for a longer period.
Section
8. Action Without a Meeting.
An action which may be taken at a meeting of stockholders may be taken
without a meeting, if a consent in writing, setting forth
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such action, is
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. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous consent shall be
given to those stockholders who have not so consented.
ARTICLE III
DIRECTORS
Section
1. Number.
The number of directors who will constitute the entire Board of
Directors shall not be less than one (1) nor more than ten (10). The number of directorships at any time shall
be that number most recently fixed by action of the sole incorporator, the
Board of Directors or the stockholders, or absent such action, shall be the
number of directors elected at the preceding annual meeting of stockholders, or
the meeting held in lieu thereof, plus the number elected since any such meeting
to account for any increase in the size of the Board of Directors.
Section
2. Election.
Members of the initial Board of Directors as elected at the organization
meeting shall hold office until the first annual meeting of stockholders and
until their successors have been elected and qualified or until their earlier
resignation or removal. At each annual
meeting of stockholders, directors shall be elected to hold office until their
successors are elected and qualified or until their earlier resignation or
removal.
Section
3. Regular Meetings.
A regular meeting of a newly elected Board of Directors shall be held
without other notice than this Bylaw, immediately after, and at the same place
as, the annual meeting of stockholders.
Other regular meetings of the Board of Directors may be held without
notice at such time and place as the Board of Directors may from time to time
determine.
Section
4. Other Meetings.
Other meetings of the Board of Directors may be called by the President
on two days’ notice to each director, either personally, or by telephone,
facsimile, telex, telegram or other form of recorded communication, or by
mail. Said notice may be waived by a
written waiver signed by any director who does not receive notice of such
meeting. The attendance of a director at
a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
Section
5. Quorum.
At all meetings of the Board of Directors a majority of directors then
in office shall constitute a quorum for the transaction of business. The act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors unless a greater number is specifically required by these Bylaws,
by the Certificate of Incorporation of the Corporation or by applicable
law. A meeting may be adjourned by less
than a quorum if a quorum is not present at the meeting. A director may participate at a meeting of
the Board of Directors by means of a conference telephone or similar
communications equipment provided such equipment enables all directors at the
meeting to hear one another.
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Section
6. Committees of Directors.
The Board of Directors, by resolution adopted by a majority of the
entire Board of Directors, may designate one or more directors to constitute a
committee. Such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise the powers of the Board of Directors in the management of the
business, property and affairs of the Corporation, and shall keep records of
its acts and proceedings and report the same to the Board of Directors as and
when required; but no such committee shall have the power or authority to amend
the Corporation’s Certificate of Incorporation or these Bylaws, adopt an
agreement of merger or consolidation, recommend to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation’s property and
assets or the dissolution of the Corporation, declare a dividend or authorize
the issuance of stock. Any director may
be removed from a committee with or without cause by the affirmative vote of a
majority of the entire Board of Directors.
Section
7. Action Without Meeting.
Any action required or permitted to be taken at any meeting of the Board
of Directors, or of any committee thereof, may be taken without a meeting, if
all members of the Board of Directors, or any such committee, as the case may
be, consent thereto in writing and such written consent is filed with the
minutes of proceedings of the Board of Directors, or any such committee, as the
case may be.
Section
8. Resignation and Removal.
Unless otherwise provided in any contract with the Corporation, any
director may resign or be removed at any time by action in accordance with
these Bylaws, the Certificate of Incorporation of the Corporation and
applicable law. A director who intends
to resign shall give written notice to the President or to the Secretary. Removal of a director, with or without cause,
may be effected by the affirmative vote of the holders of a majority of the
stock entitled to vote thereon.
Section
9. Vacancies.
Any vacancy occurring in the Board of Directors, including a vacancy
resulting from an increase in the number of directors, may be filled by action
in accordance with these Bylaws, the Certificate of Incorporation of the
Corporation and applicable law. A
director elected to fill a vacancy shall be elected for the unexpired term of
the predecessor and until a successor is duly chosen and qualified.
Section
10. Compensation.
The directors may be reimbursed for any expenses incurred by them in
respect of their attendance at any meeting of the Board of Directors or of any
of its committees. To the extent
provided by resolution adopted by a majority of the entire Board of Directors,
a director may be paid a stated salary as director and/or a fixed sum for
attendance at each meeting at which he is present. No payments or reimbursements described
herein shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
ARTICLE
IV
OFFICERS
Section
1. Election.
A President, a Secretary, and when deemed necessary by the Board of
Directors, one or more Vice Presidents, a Treasurer and other officers and
Assistant officers, including a Chairman of the Board of Directors, shall be
elected by the Board of
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Directors to hold
office until their successors are elected and qualified or until their earlier
removal or resignation. With the
exception of the offices of President and Secretary, more than one office may
be held by the same person.
Section
2. President.
The powers and duties of the President shall include active executive
management of the operations of the Corporation, subject to the control of the
Board of Directors, and responsibility for carrying out all orders and
directions of the Board of Directors.
The President shall also preside at meetings of stockholders and
directors, discharging all duties incumbent upon a presiding officer, and shall
perform such other duties as the Bylaws provide and as the Board of Directors
may prescribe.
Section
3. Vice President.
Vice Presidents, when elected, shall have such powers and perform such
duties as the President or the Board of Directors may from time to time assign
and shall perform such other duties as may be prescribed by these Bylaws. At the request of the President, any Vice
President, so appointed, shall perform the duties of the President and, when so
acting, shall have all the powers of, and be subject to all the restrictions
upon, the President.
Section
4. Secretary.
The Secretary shall keep true and complete records of the proceedings of
the meetings of the stockholders, the Board of Directors and any committees of
directors and shall file any written consents of the stockholders, the Board of
Directors and any committees of directors with the records of the
Corporation. It shall be the duty of the
Secretary to be custodian of such records and of the seal of the Corporation. The Secretary shall also attend to the giving
of all notices and shall perform such other duties as these Bylaws may provide
or the Board of Directors may assign.
Section
5. Assistant Secretary.
If one or more shall be elected, an Assistant Secretary shall have such
powers and perform such duties as the President, Secretary or the Board of
Directors may from time to time assign and shall perform such other duties as
may be prescribed by these Bylaws. At
the request of the Secretary, or in case of the Secretary’s absence or
inability to act, an Assistant Secretary shall perform the duties of the
Secretary and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the Secretary.
Section
6. Treasurer.
If one shall be elected, the Treasurer shall keep correct and complete
records of account showing accurately at all times the financial condition of
the Corporation. The Treasurer shall
also act as legal custodian of all moneys, notes, securities, and other
valuables that may from time to time come into the possession of the
Corporation, and shall promptly deposit all funds of the Corporation coming
into the Treasurer’s hands in the bank or other depository designated by the
Board of Directors and shall keep this bank account in the name of the
Corporation. Whenever requested by the
Board of Directors, the Treasurer shall furnish a statement of the financial
condition of the Corporation and shall perform such other duties as the Bylaws
may provide and the Board of Directors may assign.
Section
7. Assistant Treasurer.
If one shall be elected, the Assistant Treasurer shall have such powers
and perform such duties as the President, Treasurer or Board of Directors may
from time to time assign and shall perform such other duties as may be
prescribed by these Bylaws. At the
request of the Treasurer, or in case of the Treasurer’s absence or inability to
act,
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the Assistant
Treasurer shall perform the duties of the Treasurer and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
Treasurer.
Section
8. Other Officers.
Such other officers as are appointed shall exercise such duties and have
such powers as the Board of Directors may assign.
Section
9. Transfer of Authority.
In case of the absence of any officer of the Corporation or for any
other reason that the Board of Directors may deem sufficient, the Board of
Directors may transfer the powers or duties of that officer to any other
officer or to any director or employee of the Corporation, provided that a
majority of the entire Board of Directors approves.
Section
10. Resignation and Removal.
Unless otherwise provided in any contract with the Corporation, any
officer may resign or be removed at any time.
An officer who intends to resign shall give written notice to the
President or to the Secretary. Removal
of an officer, with or without cause, may be effected by the Board of
Directors.
Section
11. Vacancies.
A vacancy occurring in any office may be filled for the unexpired
portion of the term of office by the Board of Directors.
ARTICLE
V
CAPITAL
STOCK
Section
1. Consideration and Payment.
The capital stock of the Corporation may be issued for such
consideration, not less than the par value of any such stock expressed in
dollars, as shall be fixed by the Board of Directors. Payment of such consideration may be made, in
whole or in part, in money, other tangible or intangible property, labor or
services performed. No certificate shall
be issued for any share until the consideration therefor shall have been fully
paid.
Section
2. Stock Certificates.
Every holder of the capital stock of the Corporation shall be entitled
to a certificate signed by or in the name of the Corporation by the Chairman of
the Board, if any, or the President or a Vice President and by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all of the signatures on the
certificate may be a facsimile. Upon
each such certificate shall appear such legend or legends as may be required by
law or by any contract or agreement to which the Corporation is a party. No certificate shall be valid without such
signatures or legends as are required hereby.
Section
3. Lost Certificate.
Whenever a person shall request the issuance of a certificate of stock
to replace a certificate alleged to have been lost by theft, destruction or
otherwise, the Board of Directors shall require that such person make an
affidavit to the fact of such loss before the Board of Directors shall
authorize the requested issuance. Before
issuing a new certificate the Board of Directors may also require a bond of
indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost.
Section
4. Transfer of Stock.
The Corporation or its transfer agent shall register a transfer of a
stock certificate, issue a new certificate and cancel the old certificate upon
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presentation for the
transfer of a stock certificate duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer if there has been compliance
with applicable tax laws relating to the collection of taxes and after the
Corporation or its agent has discharged any duty to inquire into any adverse
claims of which the Corporation or agent has notice. Notwithstanding the foregoing, no such
transfer shall be effected by the Corporation or its transfer agent if such
transfer is prohibited by applicable law, by the Certificate of Incorporation
of the Corporation or these Bylaws or by any contract or agreement to which the
Corporation is a party.
ARTICLE
VI
DIVIDENDS
AND RESERVES
Section
1. Dividends.
Subject to any limitations or conditions contained in the Certificate of
Incorporation of the Corporation, dividends may be declared by a resolution
duly adopted by the Board of Directors and may be paid in cash, property or in
shares of the capital stock of the Corporation.
Section
2. Reserves.
Before payment of any dividend, the Board of Directors may set aside out
of any funds available for dividends such sum or sums as the Board of
Directors, in its absolute discretion, deems proper as a reserve fund to meet
contingencies or for equalizing dividends or to repair or maintain property or
to serve such other purposes conducive to the interests of the Corporation.
ARTICLE
VII
SPECIFIC
CORPORATE ACTIONS
All checks, drafts, notes, bonds, bills of
exchange, and orders for the payment of money of the Corporation; all deeds,
mortgages and other written contracts and agreements to which the Corporation
shall be a party; and all assignments or endorsements of stock certificates,
registered bonds or other securities owned by the Corporation shall be signed by
the Chairman of the Board, if any, the President or any Vice President and, if
required by law, attested by the Secretary or an Assistant Secretary, unless
otherwise directed by the Board of Directors or otherwise required by
applicable law.
ARTICLE
VIII
FISCAL
YEAR
The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
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ARTICLE
IX
INDEMNIFICATION
Section
1. Indemnification.
(a) 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 such person 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 such person in connection
with such action, suit or proceeding if such person acted in good faith and in
a manner such person 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 such person’s 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
such person reasonably believed to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person’s conduct was unlawful.
(b) 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 such
person 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 such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) hereof, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection
therewith.
(d) Any indemnification under
subsections (a) and (b) hereof (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a
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determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct
set forth in subsections (a) and (b) hereof.
Such determination shall be made (1) by a majority vote of the directors
who are not parties to such action, suit or proceeding, even though less than a
quorum, or (2) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys’ fees)
incurred by a director, officer, employee or agent of the Corporation in
defending any civil, criminal, administrative or investigative action, suit or
proceeding shall 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, officer, employee or agent to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article IX.
(f) The indemnification and advancement
of expenses provided by, or granted pursuant to, the provisions of this Article
IX shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in such person’s official capacity and as to action in another
capacity while holding such office.
(g) The Corporation is authorized,
pursuant to the discretion of the Board of Directors, 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 such person and incurred by such person in any such capacity,
or arising out of such person’s status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under this
Article IX.
(h) For purposes of this Article IX,
references to the “Corporation” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this Article
IX with respect to the resulting or surviving corporation as such person would
have with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Article IX,
references to “other enterprises” shall include employee benefit plans;
references to “fines” shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to “serving at the request
of the Corporation” shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person
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who acted in good
faith and in a manner such person reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article IX.
(j) The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article IX 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 a
person.
ARTICLE
X
AMENDMENT
OF BYLAWS
These Bylaws may be altered, amended or
repealed or new Bylaws may be adopted by the stockholders entitled to vote
thereon at any annual or special meeting of stockholders or by the Board of
Directors at any meeting of the Board of Directors, provided that notice of
such amendment, repeal or adoption of new Bylaws be included in the notice of
such meeting.
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