On
December 17, 2007, the Board of Directors of En Pointe Technologies, Inc. (the
“Company”), pursuant to the authority conferred on it by Section 8 of
Article VII of the Company’s Amended and Restated Bylaws (the “Bylaws”),
amended and restated, in its entirety, Article V of the Company’s Bylaws,
entitled “Stock,” to allow for the registration, issuance and transfer of the
Company’s stock, without the issuance of physical stock
certificates. This Bylaw amendment continues to permit stockholders
to obtain a physical stock certificate upon request.
Prior to
the foregoing amendment, the Company’s Bylaws did not address the registration,
issuance or transfer of uncertificated shares. The amendment and
restatement of Article V was adopted in order to make the Company eligible to
participate in a direct registration program operated by a clearing agency
registered under Section 17A of the Securities Exchange Act of 1934, as amended,
as required by new NASDAQ listing standards. The new NASDAQ listing
standards, which were approved by the Securities and Exchange Commission on
August 8, 2006, require that all companies listed on NASDAQ be eligible for a
direct registration system by January 1, 2008 in order to qualify for continued
listing.
The
foregoing description of the Bylaw amendment is qualified in its entirety by
reference to the Certificate of Amendment to the Company’s Bylaws, a copy of
which is filed as Exhibit 3.5 to this report and is incorporated by reference
into this description.
EX-3.5 2 ka8_exhibit.htm CERTIFICATE OF
AMENDMENT OF BYLAWS
Exhibit
3-5
CERTIFICATE
OF AMENDMENT
OF
AMENDED
AND RESTATED BYLAWS
OF
EN
POINTE TECHNOLOGIES, INC.
The undersigned,
who is the duly elected, qualified and acting Secretary of En Pointe Technologies,
Inc., a Delaware corporation (the “Corporation”), does hereby certify,
as follows:
1. Article
V of the Amended and Restated Bylaws of the Corporation was amended and
restated, by unanimous written consent of the Board the Directors of the
Corporation dated December 17, 2007, to read in its entirety, as follows:
ARTICLE
V
STOCK
Section
1. Certificates
for Stock; Uncertificated Shares; Stock Records. The shares
of stock of the Corporation may be certificated or uncertificated, as provided
under the General Corporation Law of the State of Delaware.
(a) Certificates
for Stock. Every owner of stock of the Corporation, upon
written request to the transfer agent or the registrar of the Corporation,
shall be entitled to have a certificate or certificates for shares of stock,
to be in such form as the Board of Directors shall prescribe, certifying
the number and class or series of shares of the stock of the Corporation
owned by such owner. The certificates representing shares of
such stock shall be signed in the name of the Corporation by (i) the Chairman
or Vice Chairman of the Board of Directors, or by the Chief Executive Officer,
the President or any Vice President, and (ii) by the Chief Financial Officer,
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. Every certificate surrendered to the Corporation for
exchange or transfer shall be cancelled, and no new certificate or certificates,
or, upon request, uncertificated shares of stock, shall be issued
in exchange for any existing certificate until such existing certificate
shall have been so cancelled, except in cases provided for in Section 3
hereof.
(b) Uncertificated
Shares. Shares of stock of the Corporation may be evidenced
by registration in the owner’s name in uncertificated form on the books
of the Corporation. To the extent required by applicable law,
within a reasonable time after the issuance or transfer of uncertificated
shares of stock, the Corporation shall send or cause to be sent to the registered
owner thereof a written notice containing the information required to be
set forth or stated on certificates representing shares of that class or
series of stock, or a statement that the Corporation will furnish without
charge to each registered owner thereof who so requests, the powers, designations,
preferences and relative rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such preferences
and/or rights. Except as otherwise expressly provided by applicable
law, the rights and obligations of the owners of uncertificated shares of
stock and the rights and obligations of the owners of certificated shares
of stock of the same class and series shall be identical.
(c) Stock
Records. A record shall be kept of the respective names of
the persons, firms or corporations owning shares of the Corporation’s stock,
whether certificated or uncertificated, the number and class or series of
shares owned thereby, respectively, and the respective dates thereof, and
in case of cancellation, the respective dates of cancellation.
Section
2. Signatures. Any
or all of the signatures on any such certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed upon, any such certificate, shall have ceased
to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may nevertheless be issued by the Corporation
with the same effect as though the person who signed such certificate, or
whose facsimile signature shall have been placed thereupon, were such officer,
transfer agent or registrar at the date of issue.
Section
3. Lost,
Stolen or Destroyed Certificates. The Corporation may issue
a new certificate or may issue uncertificated shares in place of any certificate
theretofore issued by the Corporation, alleged to have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen or destroyed. The
Corporation may, in the discretion of the Board of Directors and as a condition
precedent to the issuance of such new certificate or uncertificated shares,
require the owner of such lost, stolen, or destroyed certificate, or his
legal representative, to give the Corporation a bond (or other security)
sufficient to indemnify it against any claim that may be made against the
Corporation (including any expense or liability) on account of the alleged
loss, theft or destruction of any such certificate or the issuance of such
new certificate or uncertificated shares.
Section
4. Transfers
of Stock. Transfers of shares of stock of the Corporation
shall be made only on the books of the Corporation by the registered holder
thereof, or by such holder’s attorney-in-fact thereunto authorized by power
of attorney duly executed and filed with the Secretary, or with a transfer
clerk or a transfer agent appointed as provided in Section 6 hereof, and,
in the case of certificated shares of stock, upon surrender of the certificate
or certificates for such shares properly endorsed and the payment of all
taxes thereon, or, in the case of uncertificated shares of stock, upon receipt
of proper transfer instructions, payment of all taxes thereon and compliance
with appropriate procedures for transferring shares in uncertificated form. Whenever
any transfer of shares shall be made for collateral security, and not absolutely,
such fact shall be so expressed in the entry of transfer if, when the shares,
whether certificated or uncertificated, shall be presented to the Corporation
for transfer, both the transferor and the transferee request the Corporation
to do so.
Section
5. Record
Holders. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the record holder
of shares to receive dividends, and to vote as such record holder, and to
hold liable for calls and assessments a person registered on its books as
the record holder of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice thereof,
except as otherwise required by law.
Section
6. Regulations. The
Board of Directors may make such rules and regulations as it may deem expedient,
not inconsistent with these Amended and Restated Bylaws, concerning the
issue, transfer and registration of certificated or uncertificated shares
of stock of the Corporation. It may appoint, or authorize any
officer or officers to appoint, one or more transfer clerks or one or more
transfer agents and one or more registrars, and, in the case of certificated
shares of stock, may require all such certificates to bear the signature
or signatures of any of them.
2. The
foregoing amendments to the Amended and Restated Bylaws of the Corporation
have not been modified, amended, rescinded or revoked and remain in full
force and effect on the date hereof.
IN WITNESS
WHEREOF, I have hereunto subscribed my name on December 17, 2007.
/s/
Robert A. Mercer
Robert
A. Mercer
Secretary