AMENDED AND RESTATED
BYLAWS FOR THE REGULATION
OF
MERCER PRODUCTS COMPANY, INC.
A NEW JERSEY CORPORATION
ARTICLE I
PRINCIPAL EXECUTIVE OFFICE
The principal executive office of the corporation shall be 2250 South
Tenth Street, San Jose, California 95112.
ARTICLE II
MEETING OF SHAREHOLDERS
Section 2.01 ANNUAL MEETINGS. The annual meeting of shareholders
shall be held on the 15th day of June in each year (or, should such day fall
upon a legal holiday, then on the first day thereafter which is not a legal
holiday) at 10:00 o'clock A.M., or at such other time and on such other date as
the board of directors shall determine. At each annual meeting, directors shall
be elected and any other proper business may be transacted.
Section 2.02 SPECIAL MEETINGS. Special meetings of shareholders may
be called by the board of directors, the chairman of the board (if there be such
an officer), the president, or the holders of shares entitled to cast not less
than ten percent (10%) of the votes at such meeting. Each special meeting shall
be held at such date and time as is requested by the person or persons calling
the meeting within the limits fixed by law.
Section 2.03 PLACE OF MEETINGS. Each annual or special meeting of
shareholders shall be held at such location as may be determined by the board of
directors, or if no such determination is made, at such place as may be
determined by the chief executive officer, or by any other officer authorized by
the board of directors or the chief
executive officer to make such determination. If no location is so determined,
any annual or special meeting shall be held at the principal executive office of
the corporation.
Section 2.04 NOTICE OF MEETINGS. Notice of each annual or special
meeting of shareholders shall contain such information, and shall be given to
such persons at such time, and in such manner, as the board of directors shall
determine, or if no such determination is made, as the chief executive officer,
or any other officer so authorized by the board of directors or the chief
executive officer, shall determine, subject to the requirements of applicable
law.
Section 2.05 CONDUCT OF MEETINGS. Subject to the requirements of
applicable law, all annual and special meetings of shareholders shall be
conducted in accordance with such rules and procedures as the board of directors
may determine and, as to matters not governed by such rules and procedures, as
the chairman of such meeting shall determine. The chairman of any annual or
special meeting of shareholders shall be designated by the board of directors
and, in the absence of any such designation, shall be the chief executive
officer of the corporation.
Section 2.06 INFORMAL ACTION BY SHAREHOLDERS. An action required or
permitted to be taken at a meeting of Shareholders may be taken without a
meeting if a consent, in writing, setting forth such action, is signed by all
the Shareholders entitled to vote on the subject matter thereof and any other
Shareholders entitled to notice of a meeting of Shareholders (but not to vote
thereat) have waived in writing any rights which they may have to dissent from
such action, and such consents and waivers are filed with the minutes of
proceedings of the Shareholders. Such consents and waivers may be signed by
different Shareholders on separate counterparts.
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ARTICLE III
DIRECTORS
Section 3.01 NUMBER. The number of directors of the corporation
shall be one (1) until changed in accordance with applicable law.
Section 3.02 MEETINGS OF THE BOARD. Each regular and special meeting
of the board shall be held at a location determined as follows: The board of
directors may designate any place, within or without the State of New Jersey,
for the holding of any meeting. If no such designation is made, (i) any meeting
called by a majority of the directors shall be held at such location, within the
county of the corporation's principal executive office, as the directors calling
the meeting shall designate; and (ii) any other meeting shall be held at such
location, within the county of the corporation's principal executive office, as
the chief executive officer may designate, or in the absence of such
designation, at the corporation's principal executive office. Subject to the
requirements of applicable law, all regular and special meetings of the board of
directors shall be conducted in accordance with such rules and procedures as the
board of directors may approve and, as to matters not governed by such rules and
procedures, as the chairman of such meeting shall determine. The chairman of
any regular or special meeting shall be designated by the directors and, in the
absence of any such designation, shall be the chief executive officer of the
corporation.
Members of the board of directors (or any committee appointed by the
board) may participate in a meeting by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and participation in such meeting in such manner shall
constitute presence in person at such meeting.
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Section 3.03 INFORMAL ACTION BY DIRECTORS. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if a consent in writing to such action is signed by all of
the Directors and such written consents may be signed by different Directors on
separate counterparts.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS,
OFFICERS, AND OTHER CORPORATE AGENTS
Section 4.01 INDEMNIFICATION. This corporation shall indemnify and
hold harmless any person who is or was a director or officer of this
corporation, or is or was serving at the request of the Board of Directors of
this Corporation as a director, officer, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise (an
"Agent"), from and against any expenses, judgments, fines, settlements, and
other amounts actually and reasonably incurred in connection with any
"proceeding" (as defined in Section 14A:3-5 of the New Jersey Business
Corporation Law) to the fullest extent permitted by applicable law. The
corporation shall advance to its agents expenses incurred in defending any
proceeding prior to the final disposition thereof to the fullest extent and in
the manner permitted by applicable law.
Section 4.02 RIGHT TO INDEMNIFICATION. This section shall create a
right of indemnification for each person referred to in Section 4.01, whether or
not the proceeding to which the indemnification relates arose in whole or in
part prior to adoption of such section and in the event of death such right
shall extend to such person's legal representatives. The right of
indemnification hereby given shall not be exclusive of any
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other rights such person may have whether by law or under any agreement,
insurance policy, vote of directors or shareholders, or otherwise.
Section 4.03 INSURANCE. The corporation shall have power to purchase
and maintain insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in such capacity or arising
out of the agent's status as such whether or not the corporation would have the
power to indemnify the agent against such liability.
ARTICLE V
OFFICERS
Section 5.01 OFFICERS. The corporation shall have a president, a
treasurer, a secretary, and such other officers, including a chairman of the
board, as may be designated by the board. Unless the board of directors shall
otherwise determine, the president shall be the chief executive officer of the
corporation. Officers shall have such powers and duties as may be specified by,
or in accordance with, resolutions of the board of directors. In the absence of
any contrary determination by the board of directors, the chief executive
officer shall, subject to the power and authority of the board of directors,
have general supervision, direction, and control of the officers, employees,
business, and affairs of the corporation.
Section 5.02 LIMITED AUTHORITY OF OFFICERS. No officer of the
corporation shall have any power or authority outside the normal day-to-day
business of the corporation to bind the corporation by any contract or
engagement or to pledge its credit or to render it liable in connection with any
transaction unless so authorized by the board of directors.
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ARTICLE VII
AMENDMENTS
New bylaws may be adopted or these bylaws may be amended or repealed
by the shareholders or by the directors.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
1. That I am the duly elected and acting secretary of Mercer
Products Company, Inc., a New Jersey corporation; and
2. That the foregoing bylaws, comprising six (6) pages, constitute
the bylaws of said corporation as duly adopted by action of the board of
directors of the corporation duly taken as of April 21, 1998.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
seal of said corporation as of this 21st day of April, 1998.
/s/ KEITH OSTER
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Keith Oster, Secretary
Seal