<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to
Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): July 6, 1994
THE CHERRY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation)
0-8955 39-2977756
(Commission File Number) (I.R.S. Employer Identification Number)
3600 Sunset Avenue, Waukegan, Illinois 60087
(Address of Principal Executive Offices) (Zip Code)
(708) 662-9200
(Registrant's Telephone Number, Including Area Code)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
EXHIBITS
Number Description of Exhibit
3a Form of Amended and Restated Certificate of
Incorporation
3b Amended and Restated By-Laws
10a Amended Employee Stock Purchase Plan
10b Amended 1982 Stock Option Plan
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
THE CHERRY CORPORATION
By: /s/ Dan A. King
______________________________
Dan A. King
Treasurer, Secretary and
Corporate Controller
Dated: July 6, 1994
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE CHERRY CORPORATION
(originally incorporated under the name of Cherry
Electrical Products Corporation on June 6, 1978)
FIRST. The name of the Corporation is THE CHERRY
CORPORATION.
SECOND. The address of its registered office in the
State of Delaware is 306 South State Street, City of Dover,
County of Kent. The name of its registered agent at such address
is The United States Corporation Company.
THIRD. The nature of the business or purposes to be
conducted or promoted is to engage in any lawful act or activity
for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH. The total number of shares of all classes of
capital stock which the corporation shall have authority to issue
is thirty million (30,000,000) shares which shall be divided into
two classes as follows:
(a) Twenty Million (20,000,000) shares of
Class A Common Stock of the par value of one
dollar ($1.00) per share; and
(b) Ten Million (10,000,000) shares of Class
B Common Stock of the par value of one dollar
($1.00) per share.
Upon this Amended and Restated Certificate of
Incorporation becoming effective pursuant to the General
Corporation Law of the State of Delaware (the "Effective
Time"), and without any further action on the part of the
Corporation or its stockholders, each share of the
Corporation's Common Stock, $1.00 par value, then issued
(including shares held in the treasury of the Corporation),
shall be automatically reclassified, changed and converted
into one (1) fully paid and non-assessable share of Class B
Common Stock, $1.00 par value. Any stock certificate that,
immediately prior to the Effective Time, represents shares
of Common Stock, $1.00 par value, will, from and after the
Effective Time, automatically and without the necessity of
presenting the same for exchange, represent that number of
shares of Class B Common Stock equal to the number of shares of
Common Stock represented by such certificate prior to the
Effective Time. As soon as practicable after the Effective
Time, the Corporation's transfer agent shall mail a
transmittal letter to each record holder who would be
entitled to receive a share of Class B Common Stock.
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The Class A Common Stock and Class B Common Stock are
hereinafter collectively referred to as the "Common Stock."
The designations and powers, preferences and rights, and the
qualifications, limitations on restrictions thereof, of the
above classes of stock shall be as follows:
(a) Rights. Except as otherwise required by law or as
otherwise provided in this certificate, each share of Class
A Common Stock and each share of Class B Common Stock shall
have identical powers, preferences, qualifications,
limitations and other rights.
(b) Dividends. Subject to all of the rights of any
class of stock authorized after the effective date of this
provision of Article Fourth ranking senior to the Common
Stock as to dividends, dividends may be paid upon the Class
A Common Stock and the Class B Common Stock as and when
declared by the Board of Directors out of funds and other
assets legally available for the payment of dividends. If
and when dividends on the Class A Common Stock and the Class
B Common Stock are declared and payable from time to time by
the Board of Directors whether payable in cash, in property
or in shares of stock of the corporation, the holders of the
Class A Common Stock and the holders of the Class B Common
Stock shall be entitled to share equally, on a per share
basis, in such dividends, except that (1) a dividend or
distribution in cash or property on a share of Class A
Common Stock may be greater than any dividend or
distribution in cash or property on a share of Class B
Common Stock, and (2) dividends or other distributions
payable on the Common Stock in shares of any authorized
class or series of capital stock of the corporation may be
made (i) in shares of Class A Common Stock to the holders of
Class A Common Stock and in shares of Class B Common Stock
to the holders of Class B Common Stock, (ii) in shares of
Class A Common Stock to the holders of Class A Common Stock
and to the holders of Class B Common Stock, or (iii) in any
other authorized class or series of capital stock to the
holders of both classes of Common Stock.
(c) Liquidation. In the event of any liquidation,
dissolution or winding up of the corporation, whether
voluntary or involuntary, and after the holders of any class
of stock authorized after the effective date of this
provision of Article Fourth ranking senior to the Common
Stock as to assets shall have been paid in full the amounts
to which such holders shall be entitled, or an amount
sufficient to pay the aggregate amount to which such holders
shall be entitled shall have been set aside for the benefit
of the holders of such stock, the remaining net assets of
the corporation shall be distributed pro rata to the holders
of both classes of the Common Stock.
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(d) Merger and Consolidation. In the event of a
merger or consolidation of the corporation with or into
another entity (whether or not the corporation is the
surviving entity), the holders of Class A Common Stock shall
be entitled to receive the same per share consideration as
the per share consideration, if any, received by any holder
of the Class B Common Stock in such merger or consolidation.
(e) Voting. (1) Except as otherwise expressly
provided with respect to any other class of stock and except
as otherwise may be required by law or this certificate, the
Class B Common Stock shall have the exclusive right to vote
for the election of directors and for all other purposes and
each holder of Class B Common Stock shall be entitled to one
vote for each share of Class B Common Stock held. Except as
expressly provided in this certificate and except as
otherwise required by law, the Class A Common Stock shall
have no voting rights.
(2) The Class A Common Stock shall be entitled to
vote separately as a class only with respect to (i)
proposals to change the par value of the Class A Common
Stock, (ii) other amendments to this certificate that alter
or change the powers, preferences or special rights of the
Class A Common Stock so as to affect them adversely, and
(iii) such other matters as may require class voting under
the Delaware General Corporation Law.
(3) The number of authorized shares of Class A
Common Stock and Class B Common Stock may be increased or
decreased (but not below the number of shares then
outstanding) by the affirmative vote of the holders of a
majority of the Class B Common Stock.
(f) Stock Splits. The corporation may not split,
divide or combine the shares of either class of Common Stock
unless, at the same time, the corporation splits, divides or
combines, as the case may be, the shares of the other class
of Common Stock in the same proportion and manner.
(g) Conversion. (1) All outstanding shares of Class
A Common Stock may be converted into shares of Class B
Common Stock on a share-for-share basis by a resolution of
the Board of Directors if, as a result of the existence of
the Class A Common Stock, either the Class A Common Stock or
Class B Common Stock is, or both are, excluded from trading
on the Nasd National Market, or, if such shares are
listed on a national securities exchange, from trading on
the principal national securities exchange on which such
securities are traded.
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(2) All outstanding shares of Class A Common
Stock shall be immediately converted into shares of Class B
Common Stock on a share-for-share basis if at any time the
number of outstanding shares of Class B Common Stock as
reflected on the stock transfer records of the corporation
falls below 10% of the aggregate number of outstanding
shares of Class A Common Stock and of Class B Common Stock.
For purposes of the immediately preceding sentence, any
shares of Common Stock repurchased by the corporation shall
no longer be deemed "outstanding" from and after the date of
repurchase.
(3) In the event of any conversion of the Class A
Common Stock pursuant to subdivision (g)(1) or (g)(2),
certificates which formerly represented outstanding
shares of Class A Common Stock will thereafter be deemed to
represent a like number of shares of Class B Common Stock
and all authorized shares of Common Stock shall consist of
only Class B Common Stock.
(4) For purposes of this subsection (g) of this
Article Fourth, the term "person" means a natural person,
company, government, or political subdivision, agency or
instrumentality of a government, or other entity.
"Beneficial ownership" shall be determined pursuant to Rule
13d-3 promulgated under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or any successor regulation.
The formation or existence of a "group" shall be determined
pursuant to Rule 13d-5(b) under the 1934 Act or any
successor regulation.
(h) (1) A Person, as defined in clause (6) of
paragraph (h) of this Article Fourth, who after the
Effective Time, acquires any shares of Class B Common Stock
may not exercise the voting power of that number of the
shares of Class B Common Stock so acquired that are deemed
to be excess Class B Shares for purposes of this paragraph
(h). An acquisition of shares of Class B Common Stock
hereunder shall be deemed to include any shares of Class B
Common Stock that a Person acquires, directly or indirectly,
in one transaction or in a series of transactions, or with
respect to which the Person acts or agrees to act in concert
with any other Person. The number of shares of Class B
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Common Stock deemed hereunder to be excess Class B Shares
shall be determined by application of the following formula:
(i) the percentage which the number of shares of
Class B Common Stock acquired by the Person since the
Effective Time, bears to the aggregate number of
outstanding shares of Class B Common Stock;
(ii) minus 10%;
(iii) minus the percentage which the number
of shares of Class A Common Stock acquired at an
equitable price by that Person after the Effective
Time bears to the aggregate number of outstanding
shares of Class A Common Stock;
(iv) times the aggregate number of
outstanding shares of Class B Common Stock.
For purpose of this determination, any shares of Class A
Common Stock or Class B Common Stock repurchased by the
Company since the last date on which a Person acquired any
shares of Class A Common Stock or Class B Common Stock
(whether in treasury or retired) shall be deemed still to be
outstanding. Determination of excess Class B Shares shall
be made as of the date that a Person, directly or
indirectly, alone or with others, otherwise would seek to
exercise or direct the exercise of voting power with respect
to those Class B Shares.
(2) Shares of Class A Common Stock shall have
been acquired at an equitable price for purposes of clause
(1) of this paragraph (h) only if they were acquired at a
price at least equal to the higher of:
(i) the highest per share price (including
any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the acquiring
Person for any shares of Class B Common Stock
acquired by that Person within either 60 days
before or 60 days after the shares of Class A
Common Stock were acquired; or
(ii) the highest closing sale price during
the 30-day period immediately before the shares of
Class A Common Stock were acquired of a share of
Class B Common Stock on the Nasdaq National Market,
or, if the shares of Class B Common Stock
are not quoted on the Nasdaq National Market,
on the principal United States national
securities exchange on which the shares of Class B
Common Stock are listed, or, if the shares of
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Class B Common Stock are not listed on any United
States national securities exchange, or, if no
quotations are available, the fair market value
during such 30-day period of a share of Class B
Common Stock as determined in good faith by the
Board of Directors of the Company.
If any of the consideration given by the Person for any
share of Class B Common Stock under subclause (i) of this
clause (2) was other than cash, the value of such non-cash
consideration shall be as determined in good faith by the
Board of Directors of the Company.
(3) An acquisition of a share of Class B Common
Stock shall not include for the purposes of clause (1) of
this paragraph (h) an acquisition by bequest or inheritance,
by operation of law upon the death of any individual, or by
any other transfer without valuable consideration, including
a gift that is made in good faith and not for the purpose of
circumventing this paragraph (h).
(4) Unless there are affirmative attributes of
concerted action, acting or agreeing to act in concert with
any other Person shall not include for purposes of clause
(1) of this paragraph (h) actions taken or agreed to be
taken by Persons acting in their official capacities as
directors or officers of the Company or actions by Persons
related by blood or marriage.
(5) To the extent that the voting power of any
share of Class B Common Stock cannot be exercised pursuant
to this paragraph (h), that share of Class B Common Stock
shall not be included in the determination of the voting
power of the Company for any purpose under this Certificate
of Incorporation or the Delaware General Corporation Law.
(6) For purposes of this subsection (h) of this
Article Fourth, the term "Person" means a natural person,
company, government, or any political subdivision, agency or
instrumentality of a government, or other entity.
(i) No Pre-emptive Rights. No stockholder of this
corporation shall by reason of his holding shares of any
class have any pre-emptive or preferential right to purchase
or subscribe to any shares of any class of this corporation,
now or hereafter to be authorized, or any notes, debentures,
bonds, or other securities convertible into or carrying
options or warrants to purchase shares of any class, now or
hereafter to be authorized, whether or not the issuance of
any such shares, or such notes, debentures, bonds or other
securities, would adversely affect the dividend or voting
rights of such stockholder, other than such rights, if any,
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as the Board of Directors, in its discretion from time to
time may grant and at such price as the Board of Directors
in its discretion may fix; and the Board of Directors may
issue shares of any class of this corporation, or any notes,
debentures, bonds, or other securities convertible into or
carrying options or warrants to purchase shares of any
class, without offering any such shares of any class, either
in whole or in part, to the existing stockholders of any
class.
(j) Issuances and Repurchases of Common Stock. (1)
The Board of Directors shall have the power to issue and
sell all or any part of any class of stock herein or
hereafter authorized to such persons, firms, associations or
corporations, and for such consideration as the Board of
Directors shall from time to time, in its discretion,
determine, whether or not greater consideration could be
received upon the issue or sale of the same number of shares
of another class, and as otherwise permitted by law.
(2) The Board of Directors shall have the power
to purchase any class of stock herein or hereafter
authorized from such persons, firms, associations or
corporations, and for such consideration as the Board of
Directors shall from time to time, in its discretion,
determine, whether or not less consideration could be paid
upon the purchase of the same number of shares of another
class, and as otherwise permitted by law.
FIFTH. The name and mailing address of the
incorporator is as follows:
Name Mailing Address
William J. Quinlan, Jr. 111 West Monroe Street
Chicago, Illinois 60603
SIXTH. In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly
empowered:
To make, alter or repeal the By-Laws of the
Corporation.
To provide indemnification and insurance to the full
extent not inconsistent with Delaware and other applicable
law.
To exercise all such powers and do all such acts as may
be exercised or done by the Corporation, subject,
nevertheless, to the provisions of the laws of the State of
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Delaware, this Certificate of Incorporation and the By-Laws
of the Corporation.
Any contract, transaction or act of the Corporation or
of the directors or of any committee which shall be ratified
by the holders of a majority of the shares of stock of the
Corporation present in person or by proxy and voting at any
annual meeting, or at any special meeting called for such
purpose, or by consent, shall, insofar as permitted by law
or by this Certificate of Incorporation, be as valid and as
binding as though ratified by every stockholder of the
Corporation.
SEVENTH. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the
State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the By-Laws of
the Corporation. Election of directors need not be by ballot
unless the By-Laws of the Corporation shall so provide.
EIGHTH. In addition to the vote or consent of the
holders of the stock of the Corporation otherwise required by
law, in all cases, notwithstanding any provision to the contrary
in the Delaware General Corporation Law or any superseding
statute: (a) with respect to the proposed approval of any
agreement for the merger of this Corporation with or into any
other corporation or the consolidation of this Corporation with
any other corporation (other than a merger with a subsidiary of
the Corporation pursuant to Section 253 of the Delaware General
Corporation Law or any provision of the Delaware law superseding
said Section 253); (b) to authorize any sale, lease or exchange
of all or substantially all of the assets of the Corporation; (c)
to authorize the dissolution of the Corporation; the affirmative
vote or consent of the holders of two-thirds (2/3) of the
outstanding shares of stock of the Corporation entitled to vote
thereon shall be required to approve such agreement or to give
such authorization.
NINTH. Subject to Article Eighth hereof, the
provisions of this Certificate of this Certificate of
Incorporation may be amended, altered, changed or repealed if
such amendment, alteration, change or repeal shall receive the
affirmative vote or consent of the holders of not less than a
majority of the outstanding shares of stock of the Corporation
entitled to vote thereon.
TENTH. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
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misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of the State of Delaware or (iv)
for any transaction from which the director derived an improper
personal benefit.
If the General Corporation Law of the State of Delaware
is amended after approval of this Article by the stockholders to
authorize the further elimination or limitation of the liability
of directors, then the liability of directors shall be eliminated
or limited to the full extent authorized by the General
Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of this Article shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
ELEVENTH. The amendment to ARTICLE FOURTH was
duly adopted by the stockholders of the corporation at an annual
meeting held on July 11, 1994 in accordance with Section 242 of
the General Corporation Law of the State of Delaware and the
restatement was duly adopted by the Board of Directors on June 16,
1994 (subject to stockholder approval of the amendment to
ARTICLE FOURTH) in accordance with Section 245 of the Delaware
General Corporation Law.
IN WITNESS WHEREOF, THE CHERRY CORPORATION has caused
its corporate seal to be hereunto affixed and this certificate to
be signed by its President, and attested by its Secretary, this
11th day of July, 1994.
THE CHERRY CORPORATION
BY ___________________________
President
Attest:
_______________________________
Secretary
[Corporate Seal]
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THE CHERRY CORPORATION
AMENDED AND RESTATED
BY-LAWS
* * *
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.
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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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THE CHERRY CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSES OF THE EMPLOYEE PLAN.
The purposes of the Employee Stock Purchase Plan
("Employee Plan") are to encourage employees of The Cherry
Corporation (the "Company") and its present or future
subsidiaries (the "Subsidiary Companies") to become stockholders
in the Company, to stimulate increased interest on their part in
the affairs of the Company and Subsidiary Companies, and to
afford them an opportunity to share in the profits and growth of
the Company and its Subsidiary Companies. These purposes are
sought to be accomplished under the Employee Plan by enabling
employees to purchase directly from the Company authorized but
unissued shares of the Company's Common Stock or treasury stock
at a discount from the market price at the time that the
purchases are made and to allow employees to pay the purchase
price through payroll deductions. The Employee Plan has been
found desirable by the Board of Directors of the Company and is
believed to be advantageous to employees desiring to become
holders of the Common Stock of the Company and in the best
interests of the Company and the Subsidiary Companies.
Participation in the Employee Plan is entirely voluntary.
2. ADMINISTRATION OF EMPLOYEE PLAN.
The Employee Plan will be administered for the Company
by a committee to be known as the Employee Stock Purchase Plan
Committee ("Committee"). Such Committee shall consist of three
members to be appointed annually by the Board of Directors of the
Company. The responsibility for recording and maintaining the
Committee's records may be delegated by the Committee to a
banking institution of its choice. The responsibility for
selling the shares to participants under the Employee Plan in any
state or jurisdiction may be delegated by the Committee to
broker-dealers of its choice.
Each participant in the Employee Plan shall have a
separate account, and each participant in the Employee Plan will
receive a quarterly statement of his account. In addition, each
participant will receive annually a current Prospectus for the
Employee Plan and copies of the same communications sent to all
holders of Company Common Stock, including the Company's current
quarterly report to stockholders, the Annual Report to
Stockholders, the Notice of Annual Meeting and Proxy Statement
and Internal Revenue Service information for reporting dividends
paid.
The Company and the Committee, in administering the
Employee Plan, will not be liable for any act done in good faith
or for any good faith omission to act, including, without
limitation, any claim of liability arising out of failure to
terminate a participant's account upon such participant's death
prior to receipt of notice in writing of such death.
The Company will pay all administrative costs of the
Employee Plan and no brokerage fees or other charges will be
payable by any participant.
3. EMPLOYEES ELIGIBLE TO PARTICIPATE.
Any full-time employee of the Company or the Subsidiary
Companies shall be eligible ("Eligible Employee") to purchase
shares of the Company's Common Stock under the Employee Plan,
subject to such eligibility requirements as may be determined
from time to time by the Committee.
An Eligible Employee may join the Employee Plan at any
time.
4. PARTICIPATION THROUGH PAYROLL DEDUCTION.
An Eligible Employee may participate in the Employee
Plan by filing with the Company (or any Subsidiary Company), on a
Payroll Deduction Form furnished by the Company (or any
Subsidiary Company), an authorization for the Company (or any
Subsidiary Company) to make payroll deductions in an amount
selected by the employee which is not less than $5.00 per week
nor more than $50.00 per week. Employees may increase or
decrease, within the above limits, the amount of such deduction
by notifying the Company (or any Subsidiary Company) on forms to
be furnished by the Company (or any Subsidiary Company); provided
that no employee shall be permitted to make changes in the amount
of such deduction more than once during any four payroll
deduction periods. Payroll deductions, or any changes therein,
will begin with the next payroll deduction period after receipt
by the Company (or Subsidiary Companies) of the Completed Payroll
Deduction Form or notification of a change therein if such
receipt occurs at least five business days prior to such payroll
deduction period.
Payroll deductions will be used by the Company, along
with any dividends available for investment (see Section 5), to
purchase authorized but unissued shares of the Company's Common
Stock.
No interest will be paid by the Company on payroll
deductions.
All communications shall be given to the: Employee
Stock Purchase Plan Committee c/o The Cherry Corporation,
3600 Sunset Avenue, Waukegan, Illinois 60085.
5. REINVESTMENT OF DIVIDENDS.
Until the Company is notified of a participant's death
or withdrawal from the Employee Plan or the Employee Plan is
terminated by the Company, or a participant ceases to be an
Eligible Employee all cash dividends paid on shares of the
Company's Common Stock credited to a participant's account under
the Employee Plan will be used to purchase additional shares of
the Company's Common Stock.
6. NUMBER AND PRICE OF SHARES PURCHASED UNDER THE EMPLOYEE
PLAN.
The number of shares which may be purchased for each
participant depends upon the amount of the participant's payroll
deductions, and dividends available for investment, if any, the
price of the shares of Common Stock and the number of shares
available for sale pursuant to the Employee Plan as set forth in
Section 7. Except as limited by the provisions of Section 7,
each participant's account will be credited on each Common Stock
Purchase Date with that number of shares, including any fraction
of a share computed to four decimal places, equal to the total
amount in the participant's account available for investment on
the Common Stock Purchase Date divided by the purchase price.
The price of shares of Company Common Stock purchased
pursuant to the Employee Plan will be 95% of the average of the
over-the-counter market's closing bid and closing asked price of
the Company's Common Stock as reported on the NASDAQ System of
the National Association of Securities Dealers, Inc. ("NASDAQ")
on the appropriate Common Stock Purchase Date (or the next
preceding trading day if the Common Stock Purchase Date is not an
over-the-counter market trading day). For purposes hereof, the
Common Stock Purchase Date shall be the date set by the Board of
Directors or the Committee and if no date is set it shall be the
15th day of each calendar month (or the next preceding trading
day if such date is not an NASDAQ trading day).
7. TOTAL NUMBER OF SHARES AVAILABLE FOR ISSUANCE AND SALE
PURSUANT TO THE EMPLOYEE PLAN.
The number of shares of the Company's authorized but
unissued Common Stock reserved for issuance and sale pursuant to
the Employee Plan will be such number as the Board of Directors
may from time to time determine and will initially be 200,000
shares. The Company shall promptly institute the requisite
corporate and regulatory proceedings which may be necessary or
appropriate to assure continued availability of such shares for
issuance and sale pursuant to the Employee Plan. The Company is
entitled to substitute treasury stock for authorized and unissued
stock, but this shall not increase the ultimate number of shares
reserved for the Employee Plan.
In the event that payroll deductions and dividends
available for investment of all participants exceed, at any
Common Stock Purchase Date, the aggregate Purchase Price of
shares remaining available for issuance pursuant to the Employee
Plan, payroll deductions and dividends available for investment
of each participant will be applied pro rata to the purchase of
shares available under the Employee Plan. The portion of each
payroll deduction or dividends available for investment of any
participant not so applied will be returned promptly without
interest to the participant.
8. ISSUANCE OF CERTIFICATES FOR COMMON STOCK PURCHASE UNDER THE
EMPLOYEE PLAN.
Certificates for shares of Common Stock purchased under
the Employee Plan will automatically be issued to a participant
who has 25 or more shares credited to his account and a
participant is entitled to receive certificates for a lesser
number of whole shares credited to his account upon written
request. A participant's Employee Plan account will be reduced
by the number of such shares issued to a participant.
Certificates for whole shares, when issued, will be
registered in the names in which accounts under the Employee Plan
are maintained, or in such other manner as a participant may
direct.
9. PLEDGING OF COMMON STOCK CREDITED TO PARTICIPANT'S EMPLOYEE
PLAN ACCOUNT.
Shares credited to the account of a participant may not
be pledged.
10. NON-TRANSFERABILITY OF RIGHTS.
The right to purchase shares of the Company's Common
Stock pursuant to the Employee Plan shall not be transferable in
any manner otherwise than by will or the laws of descent and
distribution.
11. DEATH OF PARTICIPANT OR WITHDRAWAL FROM EMPLOYEE PLAN.
A participant may withdraw from the Employee Plan at
any time, but upon withdrawal an eligible employee will not be
able to begin participation again for four payroll deduction
periods after his withdrawal. A participant's death or
withdrawal from the Employee Plan will stop all investments prior
to a Common Stock Purchase Date if notification of death or
withdrawal is received not later than five business days prior to
such Common Stock Purchase Date. Any payroll deduction or
dividend reinvestment for which investment has been stopped by
timely notification of death or withdrawal from the Employee
Plan, will be refunded by the Company to the participant without
interest.
The Company or the Committee must be notified in
writing at the address set forth in Section 4 of participant's
death or withdrawal from the Employee Plan. Upon notification of
participant's death or withdrawal from the Employee Plan or upon
termination of the Employee Plan by the Company or upon a
participant's ceasing to be an eligible employee, certificates
for whole shares credited to the participant's account under the
Employee Plan will be issued and a cash payment will be made for
any fraction of a share credited to the employee's account. The
cash payment for any fractional share will be based on the
average of the over-the-counter market's closing bid and closing
asked price of the Company's Common Stock as reported on NASDAQ
on the Common Stock Purchase Date immediately prior to the date
notification of death or withdrawal is received by the Company,
or on the termination date of the Employee Plan or on the date
the participant ceases to be an eligible employee (or the next
preceding trading day if such date is not an over-the-counter
market trading day).
12. RIGHTS OFFERING.
In the event of a rights offering, warrants
representing rights on any whole shares credited to a
participant's account under the Employee Plan will be mailed
directly to the participant in the same manner as all other
shareholders.
Rights based on a fraction of a share credited to a
participant's Employee Plan account will be sold by the Company
and the proceeds will be credited to the participant's account
under the Employee Plan and applied as a cash payment to purchase
authorized but unissued shares of the Company's Common Stock on
the next Common Stock Purchase Date.
13. STOCK DIVIDENDS OR STOCK SPLITS.
Any stock dividends or shares issued pursuant to a
stock split distributed by the Company on shares credited to the
account of a participant under the Employee Plan will be added to
the participant's account.
14. VOTING RIGHTS OF SHARES CREDITED TO PARTICIPANT'S ACCOUNTS
UNDER THE EMPLOYEE PLAN.
For each meeting of shareholders each participant will
receive a proxy for voting whole shares credited to the
employee's account under the Employee Plan. A participant will
not be entitled to vote fractional shares credited to his
account.
15. SUSPENSION, MODIFICATION, AMENDMENT OR TERMINATION OF
EMPLOYEE PLAN.
The Board of Directors of the Company reserves the
right to suspend, modify, amend, or terminate the Employee Plan
at any time except that the Board of Directors cannot decrease
the purchase price of the shares offered pursuant to the Employee
Plan, or make more restrictive the eligibility requirements for
employees wishing to participate in the Employee Plan. All
participants will receive notice of any suspension, material
modification, amendment or termination of the Employee Plan.
16. IMPLEMENTATION, INTERPRETATION, OR REGULATION OF EMPLOYEE
PLAN.
The Company is authorized to take such actions to carry
out the Employee Plan as may be consistent with the Employee
Plan's terms and conditions.
The Company reserves the right to interpret and
regulate the Employee Plan as it deems desirable or necessary in
connection with the Employee Plan's operation.
<PAGE>
THE CHERRY CORPORATION
1982 STOCK OPTION PLAN
1. Purpose. The purpose of The Cherry
Corporation 1982 Stock Option Plan (the "Plan") is (i)
to encourage outstanding individuals to accept or continue
employment with The Cherry Corporation (the
"Company") and its subsidiaries and (ii) to furnish maximum
incentive to such employees to improve operations and increase
profits, by providing such employees options to acquire shares of
the Company's common stock ("Common Stock") on the terms herein
provided.
2. Administration. The Plan will be administered by a
committee (the "Committee") consisting of not less than three (3)
members of the Board of Directors of the Company. The Committee
shall be designated by the Board from time to time from among its
members who are not then, nor have at any time within one (1)
year prior thereto been, eligible to participate in the Plan.
Subject to the provisions of the Plan and the approval of the
Board of Directors, the Committee shall determine the persons to
whom, and the time at which, options shall be granted; the number
of shares to be subject to each option; whether an option is to
be an Incentive Stock Option or a Non-qualified Stock Option; the
option price per share; the duration of each option; and the
other terms and provisions of each option. The Committee shall
also interpret the Plan, prescribe, amend and rescind rules and
regulations relating thereto and make all other determinations
necessary or advisable for the administration of the Plan. A
majority of the members of the Committee shall constitute a
quorum and all determinations of the Committee shall be made by a
majority of its members. Any determination of the Committee
under the Plan may be made without notice or meeting of the
Committee by a writing signed by a majority of the Committee
members.
3. Participants. Options may be granted to officers
and other key employees of the Company or any of its present or
future subsidiaries, such key employees being those employees
who, in the judgment of the Committee, substantially contribute
to the success of the Company and its subsidiaries. A director
of the Company or of a subsidiary who is not also an employee
shall not be eligible to participate herein. An employee who has
been granted an option hereunder or under any other stock option
plan of the Company may be granted an additional option or
options hereunder.
4. Shares Reserved under the Plan. There is hereby
reserved for issuance under the Plan an aggregate of two hundred
twenty-five thousand (225,000) shares of Common Stock. Such
shares may be either authorized and unissued or treasury shares
of the Company. All such shares may, but need not, be issued
<PAGE>
pursuant to the exercise of Incentive Stock Options under Section
422A of the Internal Revenue Code of 1954, as amended (the
"Code"). Any shares subject to stock options may thereafter be
subject to new options under the Plan if there is a cancellation,
lapse, expiration or termination of any such options prior to the
issuance of the shares thereunder.
5. Terms. The terms and conditions of all options
shall be determined by the Committee, subject to Board of
Directors approval and the following limitations:
a. Option Price. Options granted hereunder shall
have a per share option price equal to one hundred
percent (100%) of the fair market value of the Common
Stock at the date of grant.
b. Option Period. Options shall be exercisable
in such installments and during such periods as may be
fixed by the Committee at the time of grant, but
(notwithstanding any other provision herein) no option
shall be exercisable after the expiration of five (5)
years from the date such option is granted.
c. Incentive Stock Option Limit. The aggregate
fair market value (determined as of the time the option
is granted) of the shares of Common Stock for which any
participant may be granted Incentive Stock Options in
any calendar year (under all stock option plans of the
Company and its parent and subsidiary corporations)
shall not exceed $100,000 plus any unused limit
carryover to such year as determined under Section
422A(c)(4) of the Code.
d. Exercise of Options.
(i) Payment of the purchase price
shall be made in cash (or by delivery of
shares of the Company's Common Stock having a
fair market value equal to the option price)
upon exercise of any option. A person
exercising an option shall also reimburse the
Company for any tax withholding required and
supply the Company such information and data
as the Company may deem necessary. An
optionee shall have none of the rights of a
shareholder with respect to the shares
subject to option until such shares are
issued.
(ii) The Committee may require an
employee, as a condition of exercise, to
establish to the satisfaction of the
Committee that all shares acquired upon the
exercise of an option will be acquired for
investment and not for resale. The Committee
<PAGE>
may permit the subsequent sale or other
disposition of any stock so acquired if it is
satisfied that such sale or other disposition
would not contravene applicable securities
laws.
(iii) No stock shall be issued until
counsel for the Company determines that the
Company has complied with all requirements
for over-the-counter or stock exchange
listing and/or for registration under
applicable securities or other laws.
e. Nontransferability. Each option granted under
the Plan shall not be transferable other than by will
or the laws of descent and distribution, and shall be
exercisable, during the holder's lifetime, only by the
holder. In the event of the death of an optionee
during employment or within three (3) months after
retirement, any option theretofore granted shall be
exercisable only within one (1) year after death (but
not beyond the original five (5) year exercise period)
and then only:
(i) By the executor or administrator of
the estate of the deceased or the person or
persons to whom the deceased optionee's
rights under the option shall pass by will or
the laws of descent and distribution; and
(ii) To the extent that the deceased
optionee was entitled to do so at the date of
death.
f. Termination of Employment. In the event that
the employment of an optionee is terminated by reason
of retirement any outstanding option may be exercised
(to the extent then exercisable) at any time within
three (3) months after such retirement and only within
the original five (5) year term for such option.
Options shall not be affected by any change of
employment so long as the optionee continues to be an
employee of the Company or a subsidiary. Nothing in
the Plan or in any option shall confer on any employee
any right to continue in the employ of the Company or
any subsidiary or to interfere with the right of the
Company or any such subsidiary to terminate the
optionee's employment at any time.
-3-
<PAGE>
6. Adjustment Provisions. If the Company shall at any
time change the number of issued shares of Common Stock without
new consideration to the Company (such as by stock dividend or
stock split), the total number of shares reserved for issuance
under this Plan and the number of shares covered by each
outstanding option shall be changed in proportion to such change
in issued shares and the price per share under each outstanding
option shall be adjusted so that the total consideration payable
to the Company upon the purchase of stock not theretofore
purchased shall not be changed. Options may also contain
provisions for their continuation or for other equitable
adjustments after changes in the Common Stock resulting from
reorganization, sale, merger, consolidation or similar
transaction.
7. Definitions. For purposes of this Plan:
a. "Subsidiary" shall mean any corporation in
which the Company owns, directly or indirectly, more
than fifty percent (50%) of the total combined voting
power of all classes of stock.
b. The fair market value of the Common Stock at
any time shall be determined by reference to the
closing bid price of the stock on the immediately
preceding trading date or in such manner as may be
required by applicable laws or regulations.
8. Amendment and Termination. The Plan may be
terminated at any time by the Board of Directors except with
respect to any options then outstanding. Also, by mutual
agreement between the Company and a participant, a stock option
may be granted to such participant in substitution for and in
cancellation of any stock option granted such participant under
the Plan. In addition, the Board may, from time to time, amend
the Plan to provide an option term of up to ten (10) years or as
it otherwise may deem proper and in the best interest of the
Company or as may be necessary to comply with any applicable laws
or regulations. However, no such amendment shall (i) increase
the total number of shares which may be issued under the Plan,
(ii) reduce the minimum purchase price, (iii) without the consent
of the holder, impair any outstanding option, or (iv) alter the
class of employees eligible to receive options.
9. Stockholder Approval. This Plan was adopted by the
Board of Directors on May 26, 1982, subject to stockholder
approval. The Plan and any stock option granted under it shall
be null and void if stockholder approval is not obtained within
twelve (12) months of the adoption of the Plan.
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