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EXHIBIT 3.2
COHU, INC.
BYLAWS
Amended and Restated as of November 15, 1996
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
directors may be held in the City of Wilmington, State of Delaware, or at such
other place within or without the State of Delaware as may be fixed from time to
time by the Board of Directors; at least ten days' notice shall be given to the
stockholders of the place so fixed. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
Section 2. An annual meeting of stockholders for the election of
directors shall be held at 2:00 P.M. local time on the last Tuesday in April in
each year, or on such other date or at such other hour as shall be designated by
the Board of Directors. Any other proper business may be transacted at the
annual meeting.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board
of Directors, (b) properly brought before the meeting by or at the direction of
the Board of Directors, or (c) properly brought before an annual meeting by a
stockholder. For
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business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder proposal to be presented at an
annual meeting shall be received at the Corporation's principal executive
offices not less than 120 calendar days in advance of the date that the
Corporation's (or the Corporation's predecessor's) proxy statement was released
to stockholders in connection with the previous year's annual meeting of
stockholders, except that if no annual meeting was held in the previous year or
the date of the annual meeting has been advanced by more than 30 calendar days
from the date contemplated at the time of the previous year's proxy statement,
notice by the stockholders to be timely must be received not later than the
close of business on the tenth day following the day on which the date of the
annual meeting is publicly announced.
A stockholder's notice to the Secretary of the Corporation shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before the
annual meeting, (b) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business, (c) the class and number of
shares of the Corporation which are beneficially owned by the stockholder, and
(d) any material interest of the stockholder in such business.
Section 3. Written notice of the annual meeting shall be given to each
stockholder entitled to vote thereat at least ten days before the date of the
meeting.
Section 4. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every election of
directors, a complete list of the stockholders entitled to vote at said
election, arranged in alphabetical order with the residence of and the number of
voting shares held by each. Such list shall be open at the place where said
election is to be held for ten days, to the examination of any stockholder, and
shall be produced and kept at the time and place of election during the whole
time thereof, and subject to the inspection of any stockholder who may be
present.
Section 5. Special meetings of the stockholders for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, shall be called only by the President or Secretary at the
request, in writing, of a majority of the authorized number of Directors, or the
affirmative vote of a majority of the authorized number of Directors, except
that the President or Secretary also shall call a special meeting of
stockholders at the request, in writing, of stockholders owning a majority of
the issued and outstanding capital stock of the Corporation provided such
meeting is for the sole purpose of considering the removal from office of a
Director who has been convicted of a felony by a court of competent jurisdiction
and such conviction is no longer subject to a direct repeal, or a Director who
has been adjudged to be liable for negligence or misconduct in the performance
of his duty to
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the Corporation by a court of competent jurisdiction and such adjudication is no
longer subject to direct appeal.
Section 6. Written notice of a special meeting of stockholders, stating
the time, place and object thereof, shall be given to each stockholder entitled
to vote thereat, at least ten days before the date fixed for the meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. 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 power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be presented or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 9. All elections shall be determined by a plurality of the
votes cast, and except as otherwise required by law or the Certificate of
Incorporation or the Bylaws of this Corporation, all other matters shall be
determined by a majority of the votes cast affirmatively or negatively.
Section 10. Each stockholder shall at every meeting of the stockholders
be entitled to one vote for each share of capital stock having voting power held
by such stockholder. Such vote may be evidenced (i) in person; (ii) by proxy
authorized by an instrument in writing; or (iii) by a transmission permitted by
law filed in accordance with the procedure established for the meeting. No
stockholder may authorize more than one proxy for his shares. No proxy shall be
voted on after three years from its date, unless the proxy provides for a longer
period, and, except where the transfer books of the Corporation have been closed
or a date has been fixed as a record date for the determination of its
stockholders entitled to vote, no share of stock shall be voted on at any
election of directors which has been transferred on the books of the Corporation
within twenty days preceding such election of directors.
Section 11. Action shall be taken by stockholders only at an annual or
special meeting of stockholders, and stockholders may not act by written
consent.
Section 12. At every annual or special meeting of the stockholders, the
Chairman, if there is such an officer, or if not, the President of the
corporation, or in his absence the Vice President designated by the President,
or in the absence of such
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designation any Vice President, or in the absence of the President or any Vice
President, a chairman chosen by the majority of the voting shares represented in
person or by proxy, shall act as Chairman. The Secretary of the corporation or a
person designated by the Chairman shall act as Secretary of the meeting. Unless
otherwise approved by the Chairman, attendance at the stockholders' meeting is
restricted to stockholders of record, persons authorized in accordance with
Section 10 of Article II of these Bylaws to act by proxy, and officers of the
corporation.
The chairman of the meeting shall call the meeting to order, establish
the agenda, and conduct the business of the meeting in accordance therewith or,
at the chairman's discretion, it may be conducted otherwise in accordance with
the wishes of the stockholders in attendance. The date and time of the opening
and closing of the polls for each matter upon which the stockholders will vote
at the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule
on the precedence of, and procedure on, motions and other procedural matters,
and exercise discretion with respect to such procedural matters with fairness
and good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person in attendance
become unruly or obstruct the meeting proceedings, the Chairman shall have the
power to have such person removed from participation. Notwithstanding anything
in the Bylaws to the contrary, no business shall be conducted at a meeting
except in accordance with the procedures set forth in this Section 12 and
Sections 2, 5 and 7 above. The chairman of a meeting shall, if the facts
warrant, determine and declare to the meeting that any proposed item of business
was not brought before the meeting in accordance with the provisions of this
Section 12 and Sections 2, 5 and 7 and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. The number of Directors which shall constitute the whole
Board shall be such number not less than three nor more than 15 as shall from
time to time be fixed by the Board of Directors. Directors need not be
stockholders.
The Board of Directors of this Corporation is divided into three
classes, Class 1, Class 2, and Class 3. The number of Directors in each class
shall be the whole number contained in the quotient arrived at by dividing the
authorized number of Directors by three, and if a fraction is also contained in
such quotient, then if such fraction is one-third, the extra Director shall be a
member of Class 3, and if the
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fraction is two-thirds, one of the Directors shall be a member of Class 3 and
the other shall be a member of Class 2. Each Director shall serve for a term
ending on the date of the third annual meeting following that at which such
Director is elected, and Directors of only one class shall be elected at any
annual meeting, except as hereinafter provided. Each Director shall serve until
a successor shall have been duly elected and qualified unless he shall resign,
become disqualified, die or shall be removed as provided in the Certificate of
Incorporation.
Section 2. Vacancies and newly created Directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
Directors then in office, even though less than a quorum. The persons so elected
to fill vacancies on the Board resulting from the death, resignation or removal
of a Director shall serve for the balance of the term of the Director being
replaced. Directors appointed to fill vacancies resulting from an increase in
the authorized number of Directors shall serve for such term not exceeding three
years as shall be designated by the Board of Directors at the time of their
election.
Section 3. The business of the Corporation shall be managed by its
Board of Directors which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Members of the Board of Directors, or of any committee thereof, may participate
in a meeting of such 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 such participation shall constitute presence
in person at such meeting.
Section 5. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the Chairman at the
annual stockholders' meeting and no notice of such meeting shall be necessary to
the newly elected Directors in order legally to constitute the meeting, provided
a quorum is present. In the event of the failure of the Chairman to fix the time
or place of such first meeting of the newly elected Board of Directors, or in
the event such meeting is not held at the time and place so fixed by the
Chairman, the meeting may be held at such time and place as shall be specified
in a notice given as hereinafter provided for special meetings of the Board of
Directors, or as shall be specified in a written waiver signed by all of the
Directors.
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Section 6. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board.
Section 7. Special meetings of the Board may be called by the Chairman
of the Board of Directors, or by the President, on three days' notice to each
Director, either personally or by mail or by telegram; special meetings shall be
called by the President or Secretary in like manner and on like notice on the
written request of two Directors.
Section 8. At all meetings of the Board a majority of the number of
Directors then in office but not less than two shall constitute a quorum for the
transaction of business and the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting of
the Board of Directors, the Directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
COMMITTEES OF DIRECTORS
Section 9. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of two or more of the Directors of the Corporation, which, to the extent
provided in the resolution, shall have and may exercise the powers 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. 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.
Section 10. The committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 11. The Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors, or a stated salary as
Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 12. Subject to the rights of holders of any class or series of
Preferred Stock then outstanding, nominations for the election of Directors may
be made by the Board of Directors or a proxy committee appointed by the Board of
Directors or by
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any stockholder entitled to vote in the election of Directors generally.
However, any stockholder entitled to vote in the election of Directors generally
may nominate one or more persons for election as Directors at a meeting only if
timely notice of such stockholder's intent to make such nomination or
nominations has been given in writing to the Secretary of the Corporation. To be
timely, a stockholder nomination for a director to be elected at an annual
meeting shall be received at the Corporation's principal executive offices not
less than 120 calendar days in advance of the date that the Corporation's (or
the Corporation's Predecessor's) Proxy statement was released to stockholders in
connection with the previous year's annual meeting of stockholders, except that
if no annual meeting was held in the previous year or the date of the annual
meeting has been advanced by more than 30 calendar days from the date
contemplated at the time of the previous year's proxy statement, notice by the
stockholders to be timely must be received not later than the close of business
on the tenth day following the day on which the date of the annual meeting is
publicly announced. Each such notice shall set forth: (a) the name and address
of the stockholder who intends to make the nomination and of the person or
persons to be nominated; (b) a representation that the stockholder is a holder
of record of stock of the Corporation entitled to vote for the election of
Directors on the date of such notice and intends to appear in person or by proxy
at the meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission, had the
nominee been nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the Corporation if
so elected.
If the chairman of the meeting for the election of Directors determines
that a nomination of any candidate for election as a Director at such meeting
was not made in accordance with the applicable provisions of this Section 12,
such nomination shall be void; provided, however, that nothing in this Section
12 shall be deemed to limit any voting rights upon the occurrence of dividend
arrearages provided to holders of Preferred Stock pursuant to the Preferred
Stock designation for any series of Preferred Stock.
ARTICLE IV
NOTICES
Section 1. Notices to Directors and stockholders shall be in writing
and delivered personally or mailed to the Directors or stockholders at their
addresses appearing on the books of the Corporation. Notice by mail shall be
deemed to be
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given at the time when the same shall be mailed. Notice to Directors may also be
given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a President, a Vice President, a Secretary and a
Treasurer. The Board of Directors may also choose additional Vice Presidents,
and one or more Assistant Secretaries and Assistant Treasurers. The Corporation
may also have, at the discretion of the Board of Directors, a Chairman of the
Board. Two or more offices may be held by the same person, except that where the
offices of President and Secretary are held by the same person, such person
shall not hold any other office.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a President from among the
Directors; and shall choose one or more Vice Presidents, a Secretary and a
Treasurer, none of whom need to be a member of the Board.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
Section 4. The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors.
Section 5. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
Section 5a. Voting Corporation's Securities. Unless otherwise ordered
by the Board of Directors, the President shall have full power and authority on
behalf of the Corporation to attend and to act and to vote at any meetings of
security holders of corporations in which the Corporation may hold securities,
and at such meetings shall possess and may exercise any and all rights and
powers incident to the
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ownership of such securities, and which as the owner thereof the Corporation
might have possessed and exercised, if present. The Board of Directors by
resolution from time to time may confer like powers upon any other person or
persons.
THE PRESIDENT
Section 6. The President shall be the Chief Executive Officer of the
Corporation, shall be ex officio a member of all standing committees, shall have
general and active management of the business of the Corporation and shall see
that all orders and resolutions of the Board of Directors are carried into
effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
THE VICE PRESIDENTS
Section 8. The Vice Presidents in the order of their seniority unless
otherwise determined by the Board of Directors, shall, in the absence or
disability of the President, perform the duties and exercise the powers of the
President. They shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all proceedings of the
meetings of the Corporation and of the Board of Directors in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or President,
under whose supervision he shall be. He shall keep in safe custody the seal of
the Corporation, and, when authorized by the Board of Directors, affix the same
to any instrument requiring it and, when so affixed, it shall be attested to by
his signature or by the signature of the Treasurer or an Assistant Secretary.
Section 10. The Assistant Secretaries in the order of their seniority,
unless otherwise determined by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary. They shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
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THE TREASURER AND ASSISTANT TREASURERS
Section 11. The Treasurer shall have the custody of the Corporation
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.
Section 12. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation.
Section 13. If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration of
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 14. The Assistant Treasurers in the order of their seniority,
unless otherwise determined by the Board of Directors, shall, in the absence or
disability of the Treasurer, perform the duties and exercise the powers of the
Treasurer. They shall perform such other duties and have such other powers as
the Board of Directors may from time to time Prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation shall be entitled
to have a certificate, signed by, or in the name of the Corporation by the
President, or a Vice President, and the Treasurer, or an Assistant Treasurer, or
the Secretary, or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation. If the Corporation shall be
authorized to issue more than one class of stock, the designations, preferences
and relative, participating, optional or other special rights of each class and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class of stock.
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Section 2. Where a certificate is signed (1) by a transfer agent or an
assistant transfer agent or (2) by a transfer clerk acting on behalf of the
Corporation and a registrar, the signature of any such President, Vice
President, Treasurer, Assistant Treasurer, Secretary, or Assistant Secretary may
be facsimile. In case any officer or officers who have signed, or whose
facsimile signature or signatures have been used on, any such certificate or
certificates shall cease to be such officer or officers of the Corporation,
whether because of death, resignation or otherwise, before such certificate or
certificates have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the Corporation.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 5. The Board of Directors may close the stock transfer books of
the Corporation for a period not exceeding sixty days preceding the date of any
meeting of stockholders or the date for payment of any dividend or the date for
the allotment of rights or the date when any change or conversions or exchange
of capital stock shall go into effect or for a period of not exceeding fifty
days in connection with obtaining the consent of stockholders for any purpose.
In lieu of closing the stock
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transfer books as aforesaid, the Board of Directors may fix in advance a date,
not exceeding fifty days preceding the date of any meeting of stockholders, or
the date for the payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital stock
shall go into effect, or a date in connection with obtaining such consent, as a
record date for the determination of the stockholders entitled to notice of, and
to vote at, any such meeting, and any adjournment thereof, or entitled to
receive payment of any such dividend, or to any such allotment of rights, or to
exercise the rights in respect or any such change, conversion or exchange of
capital stock, or to give such consent, and in such case such stockholders and
only such stockholders as shall be stockholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend, or to receive such
allotment of rights, or to exercise such rights, or to give such consent, as the
case may be notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid.
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner 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 provided by the Laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the Corporation, subject
to the provisions of the Certificate of Incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividends, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purposes as the Directors shall
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think conducive to the interest of the Corporation, and the Directors may modify
or abolish any such reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 3. The officers of the Corporation shall cause to be sent to
the shareholders of the Corporation, not later than 120 days after the close of
each fiscal year of the Corporation, an annual report which shall contain a
balance sheet as of the close of such fiscal year and a statement of profit and
loss for the year then ended.
CHECKS
Section 4. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
SEAL
Section 6. The Corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words, "Corporate Seal,
Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 7. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
("proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative, is or was a director, officer or employee of
the Corporation or is or was serving at the request of the Corporation as a
director, officer or employee of another corporation, or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer or employee or in any other capacity
while serving as a director, officer or employee, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
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said Law permitted the Corporation to provide prior to such amendment) against
all expenses, liability and loss (including attorney's fees, judgments, fines,
ERISA excise taxes or penalties, amounts paid or to be paid in settlement and
amounts expended in seeking indemnification granted to such person under
applicable law, this bylaw or any agreement with the Corporation) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that except as provided in
Section 8 of this Article, the Corporation shall indemnify any such person
seeking indemnity in connection with an action, suit or proceeding (or part
thereof) initiated by such person only if such action, suit or proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation. Such
right shall be a contract right and shall include the right to be paid by the
Corporation expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that if the Delaware General Corporation
Law then so requires, the payment of such expenses by a director or officer of
the Corporation in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of such proceeding shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it should be
determined ultimately that such director or officer is not entitled to be
indemnified under this Section or otherwise.
Section 8. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under Section 7
is not paid in full by the Corporation within twenty (20) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if such suit is not frivolous or brought in bad faith, the
claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense of any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any, has been tendered
to this Corporation) that the claimant has not met the standards of conduct
which make it permissible under the Delaware General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard or conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
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Section 9. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person in Section 7 and 8 shall not be exclusive of any other right which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 10. INDEMNIFICATION CONTRACTS. The Board of Directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article.
Section 11. INSURANCE. The Corporation will maintain insurance to the
extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
Section 12. EFFECT OF AMENDMENT. Any amendment, repeal or modification
of any provision of Sections 7 through 12 by the stockholders and the directors
of the Corporation shall not adversely affect any right or protection of a
director or officer of the Corporation existing at the time of such amendment,
repeal or modification.
ARTICLE VIII
AMENDMENTS
Section 1. These Bylaws may be altered, amended or repealed only as
provided in the Certificate of Incorporation.
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