BY-LAWS
OF
INTERNATIONAL TEST SYSTEMS, INC.
* * * * * * * * * *
ARTICLE I
Offices
The registered office of International Test Systems, Inc. (the
"Corporation") shall be CT Corporation System: the City of Wilmington, County of
New Castle, State of Delaware. The Corporation also may have offices at such
other places, within or without the State of Delaware, as the Board of Directors
(the "Board") determines from time to time or the business of the Corporation.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meetings, etc. Except as otherwise provided in
these By-laws, all meetings of the stockholders shall be held at such dates,
times and places, within or without the State of Delaware, as shall be
determined by the Board or chief executive officer and as shall be stated in the
notice of the meeting or in waivers of notice thereof. If the place of any
meeting is not so fixed, it shall be held at the registered office of the
Corporation in the State of Delaware.
Section 2. Annual Meeting. The annual meeting of stockholders for
the election of directors and the transaction of such other business as properly
may be brought before the meeting shall be held on such date after the close of
the Corporation's fiscal year as the Board may from time to time determine.
Section 3. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, may be called by the Board or the chief executive
officer and shall be called by the chief executive officer or the Secretary upon
the written request of a majority of the holders of the outstanding shares of
the Corporation's common stock. The request shall state the date, time, place
and purpose or purposes of the proposed meeting.
Section 4. Notice of Meetings. Except as otherwise required or
permitted by law, whenever the stockholders are required or permitted to take
any action at a meeting, written notice thereof shall be given, stating the
place, date and time of the meeting and, unless it is the annual meeting, by or
at whose direction it is being issued. The notice also shall designate the place
where the list of stockholders provided for in Section 8 of this Article II is
available for examination, unless such list is kept at the place where the
meeting is to be held. Notice of a special meeting also shall state the purpose
or purposes for which the meeting is called. A copy of the notice of any meeting
shall be delivered personally or shall be mailed, not less than ten (10) nor
more than sixty (60) days before the date of the meeting, to each stockholder of
record entitled to vote at the meeting. If mailed, the notice shall be given
when deposited in the United States mail, postage prepaid, and shall be directed
to each stockholder at his or her address as it appears on the record of
stockholders, or to such other address which such stockholder may have furnished
by written request to the Secretary of the Corporation. Notice of any meeting of
stockholders shall be deemed waived by any stockholder who attends the meeting,
except when the stockholder attends the meeting for the express purpose of
objecting at the beginning thereof to the transaction of any business because
the meeting is not lawfully called or convened. Notice need not be given to any
stockholder who submits, either before or after the meeting, a signed waiver of
notice. Unless the Board, after the adjournment of a meeting, shall fix a new
record date for the adjourned meeting, or unless the adjournment is for more
than thirty (30) days, notice of an adjourned meeting need not be given if the
place, date and time to which the meeting shall be adjourned is announced at the
meeting at which the adjournment is taken.
Section 5. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation of the Corporation, at all meetings of stockholders
the holders of a majority of the outstanding shares of the Corporation entitled
to vote at the meeting shall be present in person or by proxy in order to
constitute a quorum for the transaction of business.
Section 6. Voting. Except as otherwise provided by the Certificate
of Incorporation of the Corporation, at any meeting of the stockholders every
stockholder of record having the right to vote thereat shall be entitled to one
vote for every share of stock standing in his or her name as of the record date
and entitling him to so vote. A stockholder may vote in person or by proxy.
Except as otherwise provided by law or by the Certificate of Incorporation of
the Corporation, any corporate action to be taken by a vote of the stockholders,
other than the election of directors, shall be authorized by not less than a
majority of the votes cast at a meeting by the stockholders present in person or
by proxy and entitled to vote thereon. Directors shall be elected as provided in
Section 2 of Article III of these By-laws. Written ballots shall not be required
for voting on any matter unless ordered by the Chairman of the meeting.
Section 7. Proxies. Every proxy shall be executed in writing by the
stockholder or by his or her attorney-in-fact.
Section 8. List of Stockholders. At least ten (10) days before every
meeting of stockholders, a list of the stockholders (including their addresses)
entitled to vote at the meeting and their record holdings as of the record date
shall be open for examination by any stockholder, for any purpose germane to the
meeting, during ordinary business hours, at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list also shall be kept at and throughout the meeting.
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Section 9. Conduct of Meetings. At each meeting of the stockholders,
the Chairman of the Board or, in his or her absence, the President, shall act as
Chairman of the meeting. The Secretary or, in his or her absence, any person
appointed by the Chairman of the meeting shall act as Secretary of the meeting
and shall keep the minutes thereof. The order of business at all meetings of the
stockholders shall be as determined by the Chairman of the meeting.
Section 10. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation of the Corporation, any
action which may be taken at any annual or special meeting of stockholders may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed, in person or by proxy, by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take the action at a meeting at which all shares entitled to vote thereon were
present and voted in person or by proxy and shall be delivered to the
Corporation in accordance with the laws of the State of Delaware. Every written
consent shall bear the date of signature of each stockholder signing the
consent. In no event shall any corporate action referred to in any consent be
effective unless written consents signed by a sufficient number of stockholders
to take action are duly delivered to the Corporation within sixty (60) days of
the earliest dated consent delivered in accordance with the laws of the State of
Delaware. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing, but who were entitled to vote on the matter.
ARTICLE III
Board of Directors
Section 1. Number of Board Members. The Board shall consist of two (2)
or more members. The number of directors may be reduced or increased from time
to time by action of a majority of the entire Board, but no decrease may shorten
the term of an incumbent director. When used in these By-laws, the phrase
"entire Board" means the total number of directors which the Corporation would
have if there were no vacancies.
Section 2. Election and Term. The first Board shall be elected by the
incorporator or incorporators of the Corporation and the directors shall hold
office until their respective successors are duly elected and qualified or until
their earlier death, resignation or removal. Thereafter, except as otherwise
provided by law or by these By-laws, the directors shall be elected at the
annual meeting of the stockholders and the persons receiving a plurality of the
votes cast shall be so elected. Subject to his or her earlier death, resignation
or removal as provided in Section 3 of this Article III, each director shall
hold office until his or her successor shall have been duly elected and shall
have qualified.
Section 3. Removal. A director may be removed at any time, with or
without cause, by action of the Board or the stockholders.
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Section 4. Resignations. Any director may resign at any time by
giving written notice of his or her resignation to the Corporation. A
resignation shall take effect at the time specified therein or, if the time when
it shall become effective shall not be specified therein, immediately upon its
receipt, and, unless otherwise specified therein, the acceptance of a
resignation shall not be necessary to make it effective.
Section 5. Vacancies. Any vacancy in the Board arising from an
increase in the number of directors or otherwise may be filled by the vote of a
majority of the directors then in office, though less than a quorum, or by a
sole remaining director. Subject to his or her earlier death, resignation or
removal as provided in Section 3 of this Article III, each director so elected
shall hold office until his or her successor shall have been duly elected and
shall have qualified.
Section 6. Place of Meetings. Except as otherwise provided in these
By-laws, all meetings of the Board shall be held at such places, within or
without the State of Delaware, as the Board determines from time to time.
Section 7. Annual Meeting. The annual meeting of the Board shall be
held either (a) without notice immediately after the annual meeting of
stockholders and in the same place, or (b) as soon as practicable after the
annual meeting of stockholders on such date and at such time and place as the
Board determines.
Section 8. Regular Meetings. Regular meetings of the Board shall be
held on such dates and at such places and times as the Board determines. Notice
of regular meetings need not be given, except as otherwise required by law.
Section 9. Special Meetings. Special meetings of the Board may be
called by or at the direction of the chief executive officer, and shall be
called by the chief executive officer or the Secretary upon the written request
of a majority of the directors. The request shall state the date, time, place
and purpose or purposes of the proposed meeting.
Section 10. Notice of Meetings. Notice of each special meeting of the
Board (and of each annual meeting held pursuant to subdivision (b) of Section 7
of this Article III) shall be given, not later than 24 hours before the meeting
is scheduled to commence, by the chief executive officer or the Secretary and
shall state the place, date and time of the meeting. Notice of each meeting may
be delivered to a director by hand or given to a director orally (whether by
telephone or in person) or mailed or telegraphed to a director at his or her
residence or usual place of business, provided, however, that if notice of less
than 72 hours is given it may not be mailed. If mailed, the notice shall be
deemed to have been given when deposited in the United States mail, postage
prepaid, and if telegraphed, the notice shall be deemed to have been given when
the contents of the telegram are transmitted to the telegraph service with
instructions that the telegram immediately be dispatched. Notice of any meeting
need not be given to any director who shall submit, either before or after the
meeting, a signed waiver of notice or who shall attend the meeting, except if
such director shall attend for the express purpose of objecting at the beginning
thereof to the transaction of any business because the meeting is not lawfully
called or convened. Notice of any adjourned meeting, including the place, date
and time of the new meeting, shall be given to all directors not present at the
time of the adjournment, as well as to the other directors
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unless the place, date and time of the new meeting is announced at the adjourned
meeting.
Section 11. Quorum. Except as otherwise provided by law or in these
By-laws, at all meetings of the Board a majority of the entire Board shall
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board. A majority of the directors present, whether or not a quorum
is present, may adjourn any meeting to another place, date and time.
Section 12. Conduct of Meetings. At each meeting of the Board, the
chief executive officer or, in his or her absence, a director chosen by a
majority of the directors present, shall act as Chairman of the meeting. The
Secretary or, in his or her absence, any person appointed by the Chairman of the
meeting, shall act as Secretary of the meeting and keep the minutes thereof. The
order of business at all meetings of the Board shall be as determined by the
Chairman of the meeting.
Section 13. Committee of the Board. The Board, by resolution adopted by
a majority of the entire Board, may designate an executive committee and other
committees, each consisting of one (1) or more directors. Each committee
(including the members thereof) shall serve at the pleasure of the Board and
shall keep minutes of its meetings and report the same to the Board. The Board
may designate one or more directors as alternate members of any committee.
Alternate members may replace any absent or disqualified member or members at
any meeting of a committee. In addition, in the absence or disqualification of a
member of a committee, if no alternate member has been designated by the Board,
the members present at any. meeting and not disqualified from voting, whether or
not they constitute a quorum, may unanimously appoint another member of the
Board to act at the meeting in the place of the absent or disqualified member.
Except as limited by law, each committee, to the extent provided in the
resolution establishing it, shall have and may exercise all the powers and
authority of the Board with respect to all matters.
Section 14. Operation of Committees. A majority of all the members of a
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of all the members of a committee present at a meeting at
which a quorum is present shall be the act of the committee. Each committee
shall adopt whatever other rules of procedure it determines for the conduct of
its activities.
Section 15. Written Consent to Action in Lieu of A Meeting. Any action
required or permitted to be taken at any meeting of the Board or of any
committee may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 16. Meetings Held Other Than in Person. Members of the Board or
any committee may participate in a meeting of the Board or committee, as the
case may be, 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 the
meeting.
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ARTICLE IV
Officers
Section 1. Executive Officers, etc. The executive officers of the
Corporation shall be a President, a Secretary and a Treasurer. The Board also
may elect or appoint a Chairman of the Board, one or more Vice Presidents (any
of whom may be designated as Executive Vice Presidents or otherwise), and any
other officers it deems necessary or desirable for the conduct of the business
of the Corporation, each of whom shall have such powers and duties as the Board
determines. Any officer may devote less than one hundred percent (100%) of his
or her working time to his or her activities as such if the Board so approves.
Section 2. Duties.
(a) The Chairman of the Board of Directors. The Chairman of
the Board, if any, shall be the chief executive officer of the Corporation. The
Chairman of the Board shall preside at all meetings of the stockholders and the
Board, and shall be ex officio a member of all committees established.
(b) The President. The President shall be the chief operating
officer of the Corporation. The President shall have general management of the
business and affairs of the Corporation, subject to the control of the Board,
and shall have such other powers and duties as the Board assigns to him or her.
If there is no Chairman, the President shall be the chief executive officer of
the Corporation and, as such shall preside at all meetings of the stockholders
and the Board and shall be ex officio a member of all committees established.
(c) The Vice President. The Vice President or, if there shall
be more than one, the Vice Presidents, if any, in the order of their seniority
or in any other order determined by the Board, shall perform, in the absence or
disability of the President, the duties and exercise the powers of the President
and shall have such other powers and duties as the Board or the President
assigns to him or to her or to them.
(d) The Secretary. Except as otherwise provided in these
By-laws or as directed by the Board, the Secretary shall attend all meetings of
the stockholders and the Board; shall record the minutes of all proceedings in
books to be kept for that purpose; shall give notice of all meetings of the
stockholders and special meetings of the Board; and shall keep in safe custody
the seal of the Corporation and, when authorized by the Board, shall affix the
same to any corporate instrument. The Secretary shall have such other powers and
duties as the Board or the President assigns to him or to her.
(e) The Treasurer. Subject to the control of the Board, the
Treasurer shall have the care and custody of the corporate funds and the books
relating thereto; shall perform all other duties incident to the office of
Treasurer; and shall have such other powers and duties as the Board or the
President assigns to him or her.
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Section 3. Election, Removal. Subject to his or her earlier death,
resignation or removal as hereinafter provided, each officer shall hold his or
her office until his or her successor shall have been duly elected and shall
have qualified. Any officer may be removed at any time, with or without cause,
by the Board.
Section 4. Resignations. Any officer may resign at any time by giving
written notice of his or her resignation to the Corporation. A resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of a resignation shall not be
necessary to make it effective.
Section 5. Vacancies. If an office becomes vacant for any reason, the
Board or the stockholders may fill the vacancy, and each officer so elected
shall serve for the remainder of his or her predecessor's term.
ARTICLE V
Provisions Relating to Stock
Certificates and Stockholders
Section 1. Certificates. Certificates for the Corporation's capital
stock shall be in such form as required by law and as approved by the Board.
Each certificate shall be signed in the name of the Corporation by the Chairman,
if any, or the President or any Vice President and by the Secretary, the
Treasurer or any Assistant Secretary or any Assistant Treasurer and shall bear
the seal of the Corporation or a facsimile thereof. If any certificate is
countersigned by a transfer agent or registered by a registrar, other than the
Corporation or its employees, the signature of any officer of the Corporation
may be a facsimile signature. In case any officer, transfer agent or registrar
who shall have signed or whose facsimile signature was placed on any certificate
shall have ceased to be such officer, transfer agent or registrar before the
certificate shall be issued, it may nevertheless be issued by the Corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
Section 2. Lost Certificates, etc. The Corporation may issue a new
certificate for shares in place of any certificate theretofore issued by it,
alleged to have been lost, mutilated, stolen or destroyed, and the Board may
require the owner of the lost, mutilated, stolen or destroyed certificate, or
his or her legal representatives, to make an affidavit of that fact and 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 on account of the alleged loss,
mutilation, theft or destruction of the certificate or the issuance of a new
certificate.
Section 3. Transfers of Shares. Transfers of shares shall be registered
on the books of the Corporation maintained for that purpose after due
presentation of the stock certificates therefor appropriately indorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer.
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Section 4. Record Date.
(a) The Board may fix a record date for the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof. The record date fixed for such purpose shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board and shall not be more than sixty (60) days nor less than ten (10) days
before the date of such meeting. If the Board does not fix a record date for
such purpose, the record date for such purpose shall be at the close of business
on the day next preceding the day on which notice is given and, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held.
(b) The Board may fix a record date for the purpose of determining
stockholders entitled to consent to action in writing in lieu of a meeting. The
record date fixed for such purpose shall not precede the date upon which the
resolution fixing the record date is adopted by the Board and shall not be more
than ten (10) days after the adoption of such resolution fixing the record date.
If the Board does not fix a record date, the record date for the purpose of
determining stockholders entitled to consent to action in writing in lieu of a
meeting when no prior action by the Board is required by the laws of the State
of Delaware or these By- laws, the record date for such purpose shall be the
first date on which a signed written consent with respect to the action taken or
proposed to be taken is delivered to the Corporation in accordance with the laws
of the State of Delaware. If the Board does not fix a record date and prior
action by the Board is required by the laws of the State of Delaware or these
By-laws, the date for determining stockholders entitled to consent to action in
writing in lieu of a meeting shall be at the close of business on the day on
which the Board adopts the resolution taking such prior action.
(c) The Board may fix a record date for the purpose of determining the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights, or the purpose of any other action. The record date
fixed for such purpose shall not precede the date upon which the resolution
fixing the record date is adopted and shall be no more than sixty (60) days
prior to such action. If the Board does not fix a record date, the record date
for determining the stockholders for any such purpose shall be at the close of
business on the date on which the Board adopts the resolution relating thereto.
ARTICLE VI
General Provisions
Section 1. Dividends, etc. To the extent permitted by law, the Board
shall have full power and discretion, subject to the provisions of the
Certificate of Incorporation of the Corporation and the terms of any other
corporate document or instrument binding upon the Corporation, to determine
what, if any, dividends or distributions shall be declared and paid or made.
Section 2. Seal. The Corporation's seal shall be in such form as is
required by law and as shall be approved by the Board.
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Section 3. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board.
Section 4. Voting Shares in Other Corporations. Unless otherwise
directed by the Board, shares in other corporations which are held by the
Corporation shall be represented and voted only by such individual or
individuals as may be appointed by the Board of Directors.
ARTICLE VII
Amendments
By-laws may be made, altered or repealed by the Board, subject to the
right of the stockholders to alter or repeal any by-law made by the Board.
ARTICLE VII
Indemnification
Section 1. Limitation of Certain Liabilities of Directors. To the
fullest extent permitted by the laws of the State of Delaware, a director of the
Corporation shall not be liable to the Corporation or the stockholders for
monetary damages for breach of fiduciary duty as director.
Section 2. Indemnification and Insurance. (a) 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 (hereinafter a "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 or officer of the Corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent 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, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the laws of the State of Delaware, 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 said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) 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, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in paragraph (b) hereof, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board. The right to indemnification
conferred in this Section 2 shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its
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final disposition, provided, however, that if the laws of the State of Delaware
require, the payment of such expenses incurred by a director or officer 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 a 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 shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section 2 or otherwise. The
Corporation may, by action of the Board, provide indemnification to employees
and agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
(b) If a claim under paragraph (a) of this Section 2 is not paid in
full by the Corporation within ninety 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
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to 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 is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the laws of the State of Delaware 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 the Board,
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 laws of the State of Delaware, nor an actual
determination by the Corporation (including the Board's independent legal
counsel, or the stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses conferred in this Article VIII shall not be deemed
exclusive of any other right to which any person seeking indemnification or
payment of expenses may be entitled under any statute, provision of the
Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office, 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.
Section 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any 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 laws of the State of Delaware.
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