THE CHERRY CORPORATION
AMENDED AND RESTATED
BY-LAWS
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ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office
of the corporation shall be maintained in the City of Dover,
State of Delaware, and the name of the registered agent in charge
thereof is United States Corporation Company.
Section 1.2 Other Offices. The corporation may also
have an office in the City of Waukegan, State of Illinois and
also offices at such other places as the Board of Directors may
from time to time determine or the business of the corporation
may require.
ARTICLE II
STOCKHOLDERS' MEETING
Section 2.1 Place of Meetings. All meetings of the
stockholders, whether annual or special, shall be held at the
offices of the corporation in Illinois or at such other place as
may be fixed from time to time by the Board of Directors.
Section 2.2 Annual Meetings. An annual meeting of the
stockholders, commencing with the year 1979, shall be held on the
4th Thursday in July in each year, but if a legal holiday then on
the next secular day following, at 10:30 A.M., at which they
shall elect a Board of Directors, and transact such other
business as may properly be brought before the meeting.
Section 2.3 Notice of Meeting. Written notice of the
annual meeting stating the place, date and hour of the meeting,
shall be given not less than ten nor more than sixty days before
the date of the meeting to each stockholder entitled to vote at
such meeting. If mailed, notice is given when deposited in the
United States mail, postage prepaid, directed to the stockholder
at his address as it appears on the records of the corporation.
Section 2.4 Stockholders' List. At least ten days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at said meeting, arranged in
alphabetical order and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder, shall be prepared by the Secretary. Such list shall
be open to the examination of any stockholder for any purpose
germane to the meeting, during the ordinary business hours, for a
period of at least ten days prior to the meeting 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 2.5 Special Meetings. Special meetings, of
the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or by the Certificate of Incorporation, may
be called by the Chairman of the Board or by the President and
shall be called by the Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing
of stockholders owning at least 50% of the number of shares of
the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed
meeting.
Section 2.6 Notice of Special Meetings. Written
notice of a special meeting, stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to
vote at such meeting. If mailed, notice is given when deposited
in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the
corporation.
Section 2.7 Quorum. The holders of a majority of the
shares issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall be requisite and
shall constitute a quorum at all meetings of the stockholders for
the transaction of business except as otherwise provided by
statute, by the Certificate of Incorporation or by these By-Laws.
If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall
have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, of the place, date
and hour of the adjourned meeting, until a quorum shall again be
present or represented by proxy. At the adjourned meeting at
which a quorum shall be present or represented by proxy, 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.
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Section 2.8 Voting. When a quorum is present at any
meeting, and subject to the provisions of the General Corporation
Law of the State of Delaware, the Certificate of Incorporation or
these By-Laws in respect of the vote than shall be required for a
specified action, the vote of the holders of a majority of the
shares having voting power, present in person or represented by
proxy, shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of
the statutes or of the Certificate of Incorporation or of these
By-Laws, a different vote is required in which case such express
provision shall govern and control the decision of such question.
Each stockholder shall have one vote for each share of stock
having voting power registered in his name on the books of the
corporation, except as otherwise provided in the Certificate of
Incorporation.
Section 2.9 Proxies. 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
authorize another person or persons to act for him by proxy, but
no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period.
Section 2.10 Majority or Unanimous Consent. Whenever
the vote of stockholders at a meeting thereof is required or
permitted to be taken for or in connection with any corporate
action by any provisions of the statutes or of the Certificate of
Incorporation or these By-Laws, the meeting, notice of the
meeting, and vote of stockholders may be dispensed with if
stockholders owning stock having not less than the minimum number
of votes which, by statute, the Certificate of Incorporation or
these By-Laws, is required to authorize such action at a meeting
at which all shares entitled to vote thereon were present and
voted shall consent in writing to such corporate action being
taken; provided that prompt notice of the taking of such action
must be given to those stockholders who have not consented in
writing.
ARTICLE III
DIRECTORS
Section 3.1 General Powers. The business and affairs
of the corporation shall be managed by or under the direction of
the Board of Directors which may exercise all such powers of the
corporation and do all such acts and things as are not by the
General Corporation Law of the State of Delaware nor by the
Certificate of Incorporation nor by these By-Laws directed or
required to be exercised or done by the stockholders.
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Section 3.2 Number of Directors. The number of
directors which shall constitute the whole Board shall be six or
such other number as shall be fixed by resolution of the Board of
Directors. The directors shall be elected at the annual meeting
of the stockholders, and each director shall hold office until
his successor is elected and qualified or until his earlier
resignation or removal.
Section 3.3 Vacancies. If the office of any director
or directors becomes vacant by reason of death, resignation,
retirement, disqualification, removal from office, or otherwise,
or a new directorship is created, a majority of the remaining
directors, though less than a quorum, shall choose a successor or
successors, or a director to fill the newly created directorship,
who shall hold office for the unexpired term or until the next
election of directors.
Section 3.4 Place of Meeting. The Board of Directors
may hold its meetings outside of the State of Delaware, at the
office of the corporation or at such other places as they may
from time to time determine, or as shall be fixed in the
respective notices or waivers of notice of such meetings.
Section 3.5 Committee of Directors. The Board of
Directors may, by resolution or resolutions 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. 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. 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
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 in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholder 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, or amendment to the
By-Laws, of the corporation; and, unless the resolution, By-Laws,
or Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend
or to authorize the issuance of stock. Such committee or
committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of
Directors. The committees shall keep regular minutes of their
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proceedings and report the same to the Board of Directors when
required.
Section 3.6 Compensation of Directors. Directors, as
such, may receive such stated salary for their services and/or
such fixed sums and expenses of attendance for attendance at each
regular or special meeting of the Board of Directors as may be
established by resolution of the Board; provided that nothing
herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee
meetings.
Section 3.7 Annual Meeting. The annual meeting of the
Board of Directors shall be held within ten days after the annual
meeting of the stockholders in each year. Notice of such
meeting, unless waived, shall be given by mail or telegram to
each director elected at such annual meeting, at his address as
the same may appear on the records of the corporation, or in the
absence of such address, at his residence or usual place of
business, at least three days before the day on which such
meeting is to be held. Said meeting may be held at such place as
the Board may fix from time to time or as may be specified or
fixed in such notice or waiver thereof.
Section 3.8 Special Meetings. Special meetings of the
Board of Directors may be held at any time on the call of the
Chairman of the Board or President or at the request in writing
of any two directors. Notice of any such meeting, unless waived,
shall be given by mail or telegram to each director at his
address as the same appears on the records of the corporation not
less than one day prior to the day on which such meeting is to be
held if such notice is by telegram, and not less than two days
prior to the day on which the meeting is to be held if such
notice is by mail. If the Secretary shall fail or refuse to give
such notice, then the notice may be given by the officer or any
one of the directors making the call. Any such meeting may be
held at such place as the Board may fix from time to time or as
may be specified or fixed in such notice or waiver thereof. Any
meeting of the Board of Directors shall be a legal meeting
without any notice thereof having been given, if all the
directors shall be present thereat, and no notice of a meeting
shall be required to be given to any director who shall attend
such meeting.
Section 3.9 Action Without Meeting. Any action
required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a
meeting, if a written consent to such action is signed by all
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members of the Board or of such committee, as the case may be,
and such written consent is filed with the minutes of proceedings
of the Board or committee.
Members of the Board of Directors, or any committee
designated by the Board, may participate in a meeting of the
Board or committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall
constitute presence in person at such meeting.
Section 3.10 Quorum and Manner of Acting. Except as
otherwise provided in these By-Laws, a majority of the total
number of directors as at the time specified by the By-Laws shall
constitute a quorum at any regular or special meeting of the
Board of Directors. Except as otherwise provided by statute, by
the Certificate of Incorporation or by these By-Laws, the vote of
a majority of the directors present at any meeting at which a
quorum is present shall be the act of the Board of Directors. In
the absence of a quorum, a majority of the directors present may
adjourn the meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting need not be given,
except that notice shall be given to all directors if the
adjournment is for more than thirty days.
ARTICLE IV
OFFICERS
Section 4.1 Executive Officers. The executive
officers of the corporation shall be a Chairman of the Board,
President, such number of Vice Presidents, if any, as the Board
of Directors may determine, a Secretary and a Treasurer. One
person may hold any number of said officers.
Section 4.2 Election, Term of Office and Eligibility.
The executive officers of the corporation shall be elected
annually by the Board of Directors at its annual meeting or at a
special meeting held in lieu thereof. Each officer, except such
officers as may be appointed in accordance with the provisions of
Section 4.3, shall hold office until his successor shall have
been duly chosen and qualified or until his death, resignation or
removal. The Chairman of the Board shall be and remain a member
of the Board of Directors. None of the other officers need be
members of the Board.
Section 4.3 Subordinate Officers. The Board of
Directors may appoint such Assistant Secretaries, Assistant
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Treasurers, Controller and other officers, and such agents as the
Board may determine, to hold office for such period and with such
authority and to perform such duties as the Board may from time
to time determine. The Board may, by specific resolution,
empower the chief executive officer of the corporation or the
Executive Committee to appoint any such subordinate officers or
agents.
Section 4.4 Removal. The President, any Vice
President, the Secretary and/or the Treasurer may be removed at
any time, either with or without cause, but only the affirmative
vote of the majority of the total number of directors as at the
time specified by the By-Laws. Any subordinate officer appointed
pursuant to Section 4.3 may be removed at any time, either with
or without cause, by the majority vote of the directors present
at any meeting of the Board or by any committee or officer
empowered to appoint such subordinate officers.
Section 4.5 The Chairman of the Board. The Chairman
of the Board shall be the Chief Executive Officer of the
corporation, shall preside at all regular and special meetings of
stockholders and directors, shall advise and counsel with the
President and shall assume such other duties as from time to time
may be assigned to him by the Board of Directors.
Section 4.6 The President. The President shall be the
chief executive officer of the corporation. He shall have
executive authority to see that all orders and resolutions of the
Board of Directors are carried into effect, and, subject to the
control vested in the Board of Directors by statute, by the
Certificate of Incorporation or by these By-Laws, shall
administer and be responsible for the management of the business
and affairs of the corporation. In the absence of the Chairman
of the Board, he shall preside at all meetings of the
stockholders and the Board of Directors. In general he shall
perform all duties incident to the office of the President and
such other duties as from time to time may be assigned to him by
the Board of Directors.
Section 4.7 The Vice Presidents. In the event of the
absence or disability of the President, each Vice President, in
the order of his seniority, which shall be in the order of his
election, shall perform the duties of the President. The Vice
Presidents shall also perform such other duties as from time to
time may be assigned to them by the Board of Directors or by the
chief executive officer of the corporation.
Section 4.8 The Secretary. The Secretary shall:
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(a) Keep the minutes of the meetings of
the stockholders and of the Board of
Directors;
(b) See that all notices are duly given
in accordance with the provisions of these
By-Laws or as required by law;
(c) Be custodian of the records and of
the seal of the corporation and see that the
seal or a facsimile or equivalent thereof is
affixed to or reproduced on all documents,
the execution of which on behalf of the
corporation under its seal is duly
authorized;
(d) Have charge of the stock record
books of the corporation;
(e) In general, perform all duties
incident to the office of Secretary, and such
other duties as are provided by these By-Laws
and as from time to time are assigned to him
by the Board of Directors or by the chief
executive officer of the corporation.
Section 4.9 The Assistant Secretaries. If one or more
Assistant Secretaries shall be appointed pursuant to the
provisions of Section 4.3 respecting subordinate officers, then,
at the request of the Secretary, or in his absence or disability,
the Assistant Secretary designated by the Secretary (or in the
absence of such designations, then any one of such Assistant
Secretaries) 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 4.10 The Treasurer. The Treasurer shall:
(a) Receive and be responsible for all
funds of and securities owned or held by the
corporation and, in connection therewith,
among other things: keep or cause to be kept
full and accurate records and accounts for
the corporation; deposit or cause to be
deposited to the credit of the corporation
all moneys, funds and securities so received
in such bank or other depository as the Board
of Directors or an officer designated by the
Board may from time to time establish; and
disburse or supervise the disbursement of the
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funds of the corporation as may be properly
authorized;
(b) Render to the Board of Directors at
any meeting thereof, or from time to time
whenever the Board of Directors or the chief
executive officer of the corporation may
require, financial and other appropriate
reports on the condition of the corporation;
(c) In general, perform all the duties
incident to the office of Treasurer and such
other duties as from time to time may be
assigned to him by the Board of Directors or
by the chief executive officer of the
corporation.
Section 4.11 The Assistant Treasurers. If one or more
Assistant Treasurers shall be appointed pursuant to the
provisions of Section 4.3 respecting subordinate officers, then,
at the request of the Treasurer, or in his absence or disability,
the Assistant Treasurer designated by the Treasurer (or in the
absence of such designation, then any one of such Assistant
Treasurers) shall perform all 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 4.12 Salaries. The salaries of the officers
shall be fixed from time to time by the Board of Directors, and
no officer shall be prevented from receiving such salary by
reason of the fact that he is also a director of the corporation.
Section 4.13 Bonds. If the Board of Directors or the
chief executive officer shall so require, any officer or agent of
the corporation shall give bond to the corporation in such amount
and with such surety as the Board of Directors or the chief
executive officer, as the case may be, may deem sufficient,
conditioned upon the faithful performance of their respective
duties and offices.
Section 4.14 Delegation of Duties. In case of the
absence of any officer of the corporation or for any other reason
which may seem sufficient to the Board of Directors, the Board of
Directors may, for the time being, delegate his powers and
duties, or any of them, to any other officer or to any director.
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ARTICLE V
SHARES OF STOCK
Section 5.1 Regulation. Subject to the terms of any
contract of the corporation, the Board of Directors may make such
rules and regulations as it may deem expedient concerning the
issue, transfer, and registration of certificates for shares of
the stock of the corporation, including the issues of new
certificates for lost, stolen or destroyed certificates, and
including the appointment of transfer agents and registrars.
Section 5.2 Stock Certificates. Certificates for
shares of the stock of the corporation shall be respectively
numbered serially for each class of stock, or series thereof, as
they are issued, shall be impressed with the corporate seal or a
facsimile thereof, and shall be signed by the Chairman of the
Board, or the President or a Vice President, and by the Secretary
or Treasurer, or an Assistant Secretary or an Assistant
Treasurer, provided that such signatures may be facsimiles on any
certificate countersigned by a transfer agent other than the
corporation or its employee or by a registrar other than the
corporation or its employee. Each certificate shall exhibit the
name of the corporation, the class (or series of any class) and
number of shares represented thereby, and the name of the holder.
Each certificate shall be otherwise in such form as may be
prescribed by the Board of Directors.
Section 5.3 Restriction on Transfer of Securities. A
restriction on the transfer or registration of transfer of
securities of the corporation may be imposed either by the
Certificate of Incorporation or by these By-Laws or by an
agreement among any number of security holders or among such
holders and the corporation. No restriction so imposed shall be
binding with respect to securities issued prior to the adoption
of the restriction unless the holders of the securities are
parties to an agreement or voted in favor of the restriction.
A restriction on the transfer of securities of the
corporation is permitted by this Section if it:
(a) Obligates the holder of the
restricted securities to offer to the
corporation or to any other holders of
securities of the corporation or to any other
person or to any combination of the foregoing
a prior opportunity, to be exercised within a
reasonable time, to acquire the restricted
securities; or
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(b) Obligates the corporation or any
holder of securities of the corporation or
any other person or any combination of the
foregoing to purchase the securities which
are the subject of an agreement respecting
the purchase and sale of the restricted
securities; or
(c) Requires the corporation or the
holders of any class of securities of the
corporation to consent to any proposed
transfer of the restricted securities or to
approve the proposed transferee of the
restricted securities; or
(d) Prohibits the transfer of the
restricted securities to designated persons
or classes of persons, and such designation
is not manifestly unreasonable; or
(e) restricts transfer or registration
of transfer in any other lawful manner.
Unless noted conspicuously on the security, a
restriction, even though permitted by this Section, is
ineffective except against a person with actual knowledge of the
restriction.
Section 5.4 Transfer of Shares. Subject to the
restrictions permitted by Section 5.3, shares of the capital
stock of the corporation shall be transferable on the books of
the corporation by the holder thereof in person or by his duly
authorized attorney, upon the surrender or cancellation of a
certificate or certificates for a like number of shares. As
against the corporation, a transfer of shares can be made only on
the books of the corporation and in the manner hereinabove
provided, and the corporation shall be entitled to treat the
registered holder of any share as the owner thereof and shall not
be bound to recognize any equitable or other claim to or interest
in such share on the part of any other person, whether or not it
shall have express or other notice thereof, save as expressly
provided by the statutes of the State of Delaware.
Section 5.5 Fixing Date for Determination of
Stockholders of Record. 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
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any rights in respect of any change, conversion or exchange of
stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action.
If no record date is fixed:
(a) The record date for determining
stockholders entitled to notice of or to vote
at a 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
corporation 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;
(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.
A determination of stockholders of record entitled to
notice of or to vote at a 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.
Section 5.6 Lost Certificate. Any stockholder
claiming that a certificate representing shares of stock has been
lost, stolen or destroyed may make an affidavit or affirmation of
the fact and, if the Board of Directors so requires, advertise
the same in a manner designated by the Board, and give the
corporation a bond of indemnity in form and with security for an
amount satisfactory to the Board (or an officer or officers
designated by the Board), whereupon a new certificate may be
issued of the same tenor and representing the same number, class
and/or series of shares as were represented by the certificate
alleged to have been lost, stolen or destroyed.
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ARTICLE VI
BOOKS AND RECORDS
Section 6.1 Location. The books, accounts and records
of the corporation may be kept at such place or places within or
without the State of Delaware as the Board of Directors may from
time to time determine.
Section 6.2 Inspection. The books, accounts, and
records of the corporation shall be open to inspection by any
member of the Board of Directors at all times; and open to
inspection by the stockholders at such times, and subject to such
regulations as the Board of Directors may prescribe, except as
otherwise provided by statute.
Section 6.3 Corporate Seal. The corporate seal shall
contain two concentric circles between which shall be the name of
the corporation and the word "Delaware" and in the center shall
be inscribed the words "Corporate Seal."
ARTICLE VII
DIVIDENDS AND RESERVES
Section 7.1 Dividends. The Board of Directors of the
corporation, subject to any restrictions contained in the
Certificate of Incorporation and other lawful commitments of the
corporation, may declare and pay dividends upon the shares of its
capital stock either out of the surplus of the corporation, as
defined in and computed in accordance with the General
Corporation Law of the State of Delaware, or in case there shall
be no such surplus, out of the net profits of the corporation for
the fiscal year in which the dividend is declared and/or the
preceding fiscal year. If the capital of the corporation,
computed in accordance with the General Corporation Law of the
State of Delaware, shall have been diminished by depreciation in
the value of its property, or by losses, or otherwise, to an
amount less than the aggregate amount of the capital represented
by the issued and outstanding stock of all classes having a
preference upon the distribution of assets, the Board of
Directors of the corporation shall not declare and pay out of
such net profits any dividends upon any shares of any classes of
its capital stock until the deficiency in the amount of capital
represented by the issued and outstanding stock of all classes
having a preference upon the distribution of assets shall have
been repaired.
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Section 7.2 Reserves. The Board of Directors of the
corporation may set apart, out of any of the funds of the
corporation available for dividends, a reserve or reserves for
any proper purpose and may abolish any such reserve.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Fiscal Year. The fiscal year of the
corporation shall end on the last day of February in each year.
Section 8.2 Depositories. The Board of Directors or
an officer designated by the Board shall appoint banks, trust
companies, or other depositories in which shall be deposited from
time to time the money or securities of the corporation.
Section 8.3 Checks, Drafts and Notes. 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 as shall from time to time be designated by resolution
of the Board of Directors or by an officer appointed by the
Board.
Section 8.4 Contracts and Other Instruments. The
Board of Directors may authorize any officer, 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 authority may
be general or confined to specific instances.
Section 8.5 Notices. Whenever under the provisions of
the statutes or of the Certificate of Incorporation or of these
By-Laws notice is required to be given to any director or
stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, by depositing
the same in a post office or letter box, in a post-paid sealed
wrapper, or by delivery to a telegraph company, addressed to such
director or stockholder at such address as appears on the records
of the corporation, or, in default of other address, to such
director or stockholder at the General Post Office in the City of
Dover, Delaware, and such notice shall be deemed to be given at
the time when the same shall be thus mailed or delivered to a
telegraph company.
Section 8.6 Waiver of Notice. Whenever any notice is
required to be given under the provisions of the statutes or of
the Certificate of Incorporation or of these By-Laws, a waiver
thereof in writing signed by the person or persons entitled to
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said notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at
a meeting 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 regular or special meeting of the stockholders,
directors or members of a committee of directors need be
specified in any written waiver of notice.
Section 8.7 Stock in Other Corporations. Any shares
of stock in any other corporation which may from time to time be
held by this corporation may be represented and voted at any
meeting of shareholders of such corporation by the Chairman of
the Board, or the President or a Vice President, or by any other
person or persons thereunto authorized by the Board of Directors,
or by any proxy designated by written instrument of appointment
executed in the name of this corporation by its Chairman of the
Board, President or a Vice President. Shares of stock belonging
to the corporation need not stand in the name of the corporation,
but may be held for the benefit of the corporation in the
individual name of the Treasurer or of any other nominee
designated for the purpose by the Board of Directors.
Certificates for shares so held for the benefit of the
corporation shall be endorsed in blank or have proper stock
powers attached so that said certificates are at all times in due
form for transfer, and shall be held for safekeeping in such
manner as shall be determined from time to time by the Board of
Directors.
Section 8.8 Indemnification of Officers, Directors,
Employees and Agents; Insurance. 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, shall be indemnified by the corporation 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,
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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 this conduct was
unlawful.
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
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 the Court of
Chancery of Delaware or such other court shall deem proper.
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 the first two paragraphs of this Section 8.8, or in defense
of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Any indemnification under the first two paragraphs of
this Section 8.8 (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in the first two
paragraphs of this Section 8.8. Such determination shall be made
by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit
or proceeding, or if such a quorum is not obtainable (or, even if
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obtainable a quorum of disinterested directors so directs) by
independent legal counsel in a written opinion, or by the
stockholders.
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 of Directors in the
specific case 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 Section
8.8.
The indemnification provided by this Section 8.8 shall
not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any By-Law,
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 a person.
The corporation shall have power 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 Section 8.8.
The purposes of this Section 8.8, 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, and
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 the provisions of this Section
8.8 with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
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Section 8.9. Amendment of By-Laws.
The stockholders, by the affirmative vote of the
holders of a majority of the stock issued and outstanding and
having voting power may, at any annual or special meeting if
notice of such alteration or amendment of the By-Laws is
contained in the notice of such meeting, adopt, amend, or repeal
these By-Laws, and alterations or amendments of By-Laws made by
the stockholders shall not be altered or amended by the Board of
Directors.
The Board of Directors, by the affirmative vote of a
majority of the whole Board, may adopt, amend, or repeal these
By-Laws at any meeting, except as provided in the above
paragraph. By-Laws made by the Board of Directors may be altered
or repealed by the stockholders.
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