UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of report (Date of earliest
event reported): December 3, 1999
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HARRIS CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 1-3863 34-0276860
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(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
1025 West NASA Blvd., Melbourne, FL 32919
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (321) 727-9100
No Change
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(Former Name or Former Address, if Changed Since Last Report)
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Items 1-4. Not Applicable.
Item 5. Other Events.
On December 3, 1999, the Board of Directors of Harris Corporation
(the "Company") approved an amendment and restatement of the Company's By-Laws
(the "Amended By-Laws"). The Amended By-Laws, among other things, modify the
existing "advance notice" by-law and provide that persons nominated by
shareholders for election as directors of the Company and any other proposals by
shareholders shall be properly brought before an annual meeting of shareholders
only if notice of any such nomination or matter (the "Shareholder Notice") shall
be delivered to the Secretary of the Company at the principal executive office
of the Company not less than ninety (90) days nor more than one hundred twenty
(120) days prior to the first anniversary date of the annual meeting of
shareholders for the preceding year; provided, however, that in the event that
the annual meeting is not scheduled to be held within a period commencing thirty
(30) days before such anniversary date and ending thirty (30) days after such
anniversary date (an annual meeting date outside such period, an "Other Meeting
Date"), the Shareholder Notice shall be delivered by the close of business on
the later of (i) the date ninety (90) days prior to such Other Meeting Date or
(ii) the tenth day following the date such Other Meeting Date is first publicly
announced or disclosed.
In the event that the number of directors to be elected to the
Company's Board of Directors at the next annual meeting is increased and either
all of the nominees for director at the next annual meeting or the size of the
increased Board of Directors is not publicly announced or disclosed by the
Company at least one hundred (100) days prior to the first anniversary of the
preceding year's annual meeting, a Shareholder Notice shall be considered timely
with respect to nominees for any new positions created by such increase if it
shall be delivered to the Secretary of the Company at the principal executive
office of the Company not later than the close of business on the tenth day
following the first date all of such nominees or the size of the increased Board
of Directors shall have been publicly announced or disclosed.
If the Company calls a special meeting of shareholders for the
purpose of electing one or more directors to the Board of Directors, any
shareholder may nominate a person or persons for election to such position if
the Shareholder Notice shall be delivered to the Secretary of the Company at the
principal executive office of the Company not later than the tenth day following
the day on which the date of the special meeting and either the names of the
nominees proposed by the Board of Directors to be elected at such meeting or the
number of directors to be elected are publicly announced or disclosed.
Pursuant to the Amended By-Laws, in order to be timely, any
Shareholder Notice with respect to nominations of directors or any other
proposals for the year 2000 annual meeting of the Company must be received by
the Secretary of the Company no earlier than June 24, 2000 and no later than
July 24, 2000. The year 2000 annual meeting is expected to be held on October
27, 2000.
In addition to the changes to the advance notice by-law, other
changes were made to the Company's by-laws. The Amended By-Laws are filed as an
exhibit to this Report.
Item 6. Not Applicable.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements.
None.
(b) Pro Forma Financial Information.
None.
(c) Exhibits.
The following document is filed as an Exhibit to this Report:
3.1 By-Laws of Harris Corporation, as amended and restated on
December 3, 1999.
Items 8-9. Not applicable.
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SIGNATURE
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.
HARRIS CORPORATION
Date: December 6, 1999 By: /s/ Bryan R. Roub
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Name: Bryan R. Roub
Title: Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit No.
Under Reg.
S-K, Item 601
Description
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3.1 By-Laws of Harris Corporation, as amended and restated on
December 3, 1999.
EXHIBIT 3.1
BY-LAWS OF
HARRIS CORPORATION
AS IN EFFECT DECEMBER 3, 1999
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BY-LAWS OF
HARRIS CORPORATION
ARTICLE I.
OFFICES.
The registered office of the Company shall be in the City of
Wilmington, County of New Castle, State of Delaware.
The Company may also have offices at such other places as the Board of
Directors from time to time may determine or the business of the Company may
require.
ARTICLE II.
MEETINGS OF SHAREHOLDERS.
Section 1. Place of Meeting. All meetings of shareholders for the
election of directors or for any other purposes whatsoever shall be held at the
office of the Company in the City of Wilmington, Delaware, or elsewhere within
or without the State of Delaware, as may be decided upon from time to time by
the Board of Directors and indicated in the notice of the meeting.
Section 2. Annual Meeting. The annual meeting of the shareholders shall
be held on such date as the Board of Directors may determine and at the time as
shall be decided by the Board of Directors and indicated in the notice of the
meeting. Directors shall be elected thereat and such other business transacted
as may be specified in the notice of the meeting, or as may be properly brought
before the meeting.
Section 3. Special Meetings. Special meetings of the shareholders may
be held on any business day when called by the Chairman of the Board, Chief
Executive Officer, the Board of Directors, or a majority of the full Board of
Directors acting without a meeting.
Section 4. Notice of Meetings. A written or printed notice of every
annual or special meeting of the shareholders stating the time and place and the
purposes thereof shall be given to each shareholder entitled to vote thereat and
to each shareholder entitled to notice as provided by law, which notice shall be
given not less than ten (10) nor more than sixty (60) days prior to the date of
the meeting. If mailed, such notice shall be deemed given when deposited in the
United States mail, postage prepaid, directed to each shareholder at such
shareholder's address as it appears on the records of the Company. It shall be
the duty of the Secretary to give written notice of the annual meeting, and of
each special meeting when requested so to do by the officer or directors calling
such meeting. Any shareholder may waive in writing any notice required to be
given by law or under these By-Laws and by attendance or voting at any meeting
without protesting the lack of proper notice shall be deemed to have waived
notice thereof.
Section 5. Shareholder List. A complete list of the shareholders
entitled to vote at each meeting of shareholders, arranged in alphabetical
order, with the address of each and the
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number of voting shares held by each, shall be prepared by or at the instance of
the Secretary and made available at the location where the meeting is to be
held, at least ten (10) days before every meeting, and shall at all times during
the usual hours for business in said ten (10) day period and during the time of
said meeting be open to examination by any shareholder.
Section 6. Voting and Proxies. At all meetings of shareholders, only
such shareholders shall be entitled to vote, in person or by proxy, who appear
upon the records of the Company as the holders of shares at the time possessing
voting power, or if a record date be fixed as hereinafter provided, those
appearing as such on such record date. At each meeting of the shareholders,
every shareholder having the right to vote shall be entitled to vote in person
or by proxy appointed by an instrument in writing, subscribed by such
shareholder and bearing a date not more than three (3) years prior to said
meeting, unless said instrument provides for a longer period.
Section 7. Quorum and Adjournments. Except as may otherwise be required
by law or by the Certificate of Incorporation or by these By-Laws, the holders
of a majority of the shares entitled to vote at a shareholders' meeting shall
constitute a quorum to hold such meeting; provided, however, that any meeting,
whether or not a quorum is present or otherwise, may, by vote of the holders of
a majority of the voting shares represented thereat, adjourn from time to time
and from place to place in the county wherein said meeting was originally called
without notice other than by announcement at such meeting.
Section 8. Advance Notice of Shareholder Nominees for Director and
Other Shareholder Proposals. (a) The matters to be considered and brought before
any annual or special meeting of shareholders of the Company shall be limited to
only such matters, including the nomination and election of directors, as shall
be brought properly before such meeting in compliance with the procedures set
forth in this Section 8.
(b) For any matter to be properly brought before any annual meeting of
shareholders, the matter must be (i) specified in the notice of annual meeting
given by or at the direction of the Board of Directors, (ii) otherwise brought
before the annual meeting by or at the direction of the Board of Directors or
(iii) brought before the annual meeting in the manner specified in this Section
8(b) by a shareholder of record entitled to vote at the annual meeting of
shareholders on such matter. In addition to any other requirements under
applicable law and the Certificate of Incorporation and these By-Laws, persons
nominated by shareholders for election as directors of the Company and any other
proposals by shareholders shall be properly brought before the meeting only if
notice of any such matter to be presented by a shareholder at such meeting of
shareholders (the "Shareholder Notice") shall be delivered to the Secretary of
the Company at the principal executive office of the Company not less than
ninety (90) nor more than one hundred and twenty (120) days prior to the first
anniversary date of the annual meeting for the preceding year; provided,
however, if and only if the annual meeting is not scheduled to be held within a
period that commences thirty (30) days before such anniversary date and ends
thirty (30) days after such anniversary date (an annual meeting date outside
such period being referred to herein as an "Other Meeting Date"), such
Shareholder Notice shall be given in the manner provided herein by the later of
the close of
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business on (i) the date ninety (90) days prior to such Other Meeting Date or
(ii) the tenth day following the date such Other Annual Meeting Date is first
publicly announced or disclosed. Any shareholder desiring to nominate any person
or persons (as the case may be) for election as a director or directors of the
Company shall deliver, as part of such Shareholder Notice, a statement in
writing setting forth (i) the name of the person or persons to be nominated;
(ii) the number and class of all shares of each class of stock of the Company
owned of record and beneficially by each such person, as reported to such
shareholder by such nominee(s); (iii) the information regarding each such person
required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by
the Securities and Exchange Commission (or the corresponding provisions of any
regulation subsequently adopted by the Securities and Exchange Commission
applicable to the Company); (iv) each such person's signed consent to serve as a
director of the Company if elected; and (v) such shareholder's name and address
and the number and class of all shares of each class of stock of the Company
owned of record and beneficially by such shareholder. Any shareholder who gives
a Shareholder Notice of any matter proposed to be brought before the meeting
(other than a nomination of directors) shall deliver, as part of such
Shareholder Notice, the text of the proposal to be presented and a brief written
statement of the reasons why such shareholder favors the proposal and setting
forth such shareholder's name and address, the number and class of all shares of
each class of stock of the Company owned of record and beneficially by such
shareholder and, if applicable, any material interest of such shareholder in the
matter proposed (other than as a shareholder). As used herein, shares
"beneficially owned" shall mean all shares which such person is deemed to
beneficially own pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934 (the "Exchange Act"). If a shareholder is entitled to vote only for
a specific class or category of directors at a meeting (annual or special), such
shareholders right to nominate one or more individuals for election as a
director at the meeting shall be limited to such class or category of directors.
Notwithstanding anything in this Section 8(b) to the contrary, in the
event that the number of directors to be elected to the Board of Directors of
the Company at the next annual meeting is increased and either all of the
nominees for director at the next annual meeting or the size of the increased
Board of Directors is not publicly announced or disclosed by the Company at
least one hundred (100) days prior to the first anniversary of the preceding
year's annual meeting, a Shareholder Notice shall also be considered timely
hereunder, but only with respect to nominees for any new positions created by
such increase, if it shall be delivered to the Secretary of the Company at the
principal executive office of the Company not later than the close of business
on the tenth day following the first date all of such nominees or the size of
the increased Board of Directors shall have been publicly announced or
disclosed.
(c) Except as provided in the immediately following sentence, only such
matters shall be properly brought before a special meeting of shareholders as
shall have been brought before the meeting pursuant to the Company's notice of
such meeting. In the event the Company calls a special meeting of shareholders
for the purpose of electing one or more directors to the Board of Directors, any
shareholder may nominate a person or persons (as the case may be), for election
to such position(s) as specified in the Company's notice of meeting, if the
Shareholder Notice required by Section 8(b) hereof shall be delivered to the
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Secretary of the Company at the principal executive office of the Company not
later than the close of business on the tenth day following the day on which the
date of the special meeting and either the names of the nominees proposed by the
Board of Directors to be elected at such meeting or the number of directors to
be elected is publicly announced or disclosed.
(d) For purposes of this Section 8, a matter shall be deemed to have
been "publicly announced or disclosed" if such matter is disclosed in a press
release reported by the Dow Jones News Service, Associated Press or a comparable
national news or wire service or in a document publicly filed by the Company
with the Securities and Exchange Commission.
(e) In no event shall the adjournment of an annual meeting or special
meeting or the postponement of any meeting that does not require a change in the
record date for such meeting, or any announcement thereof, commence a new period
for the giving of notice as provided in this Section 8. This Section 8 shall not
(i) affect the rights of shareholders to request inclusion of proposals made
pursuant to Rule 14a-8 under the Exchange Act or (ii) apply to the election of
directors selected by or pursuant to the provisions of Article FOURTH, Section 3
of the Restated Certificate of Incorporation relating to the rights of the
holders of any class or series of stock of the Company having a preference over
the Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances.
(f) The person presiding at any meeting of shareholders, in addition to
making any other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to determine whether notice of nominees
and other matters proposed to be brought before a meeting has been duly given in
the manner provided in this Section 8 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters are out of order and
shall not be considered.
Section 9. Conduct of Meetings. The Board of Directors of the Company
may adopt by resolution such rules, regulations and procedures for the conduct
of meetings of shareholders as it shall deem appropriate. Except to the extent
inconsistent with applicable law and such rules and regulations adopted by the
Board of Directors, the Chairman of each meeting of shareholders shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts, including causing an adjournment of such meeting, as, in the
judgment of such Chairman, are appropriate. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the
Chairman of the meeting, may include, without limitation, the following: (a) the
establishment of an agenda or order of business for the meeting, including
fixing the time for opening and closing the polls for voting on each matter; (b)
rules and procedures for maintaining order at the meeting and the safety of
those present; (c) limitations on attendance at or participation in the meeting
to shareholders of record of the Company, their duly authorized and constituted
proxies or such other persons as the Chairman shall permit; (d) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and (e)
limitations on the time allotted to questions or comments by participants.
Unless, and to the extent determined by the Board of Directors or the Chairman
of the meeting, meetings of shareholders shall not be required to be held in
accordance with rules of parliamentary procedure.
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Section 10. Organization of Meetings. Meetings of shareholders shall be
presided over by the Chairman of the Board of Directors, or in his or her
absence by the Chief Executive Officer, or in the absence of the foregoing
persons by a Chairman designated by the Board of Directors, or, in the absence
of any such designation, by a Chairman chosen at the meeting. The Secretary, or
in the absence of the Secretary, an Assistant Secretary, shall act as the
secretary of the meeting, but in the absence of the Secretary or Assistant
Secretary, the Chairman of the meeting may appoint any person to act as
secretary of the meeting.
ARTICLE III.
BOARD OF DIRECTORS.
Section 1. Number. The Board of Directors shall consist of not less
than eight nor more than thirteen members as may be determined by the Board of
Directors. After any such determination, the number so determined shall continue
as the authorized number of members of the Board until the same shall be changed
as aforesaid. Directors need not be shareholders.
Section 2. Manner of Election. Except as may otherwise be required by
the Certificate of Incorporation, at each meeting of the shareholders called for
the purpose of electing directors, the persons receiving the greatest number of
votes shall be the directors. Such election shall be by ballot.
Section 3. Tenure; Vacancies. Each director shall hold office until the
annual meeting for the year in which his or her term expires and until his or
her successor shall be elected and qualified; subject, however, to prior
resignation, death or removal as provided by law. Any director may resign at any
time by oral statement to that effect made at a meeting of the Board of
Directors, to be effective upon its acceptance by the Board, or in writing to
that effect delivered to the Secretary, to be effective upon its acceptance or
at the time specified in such writing. Any vacancy on the Board of Directors
that results from an increase in the number of directors shall be filled by a
majority of the Board of Directors then in office, and any other vacancy
occurring in the Board of Directors shall be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of his
predecessor.
Section 4. Organization Meeting. Immediately after each annual meeting
of the shareholders or special meeting held in lieu thereof, the newly elected
Board of Directors, if a quorum is present, shall hold an organization meeting
for the purpose of electing officers and transacting any other business. Notice
of such meeting need not be given. If, for any reason, said organization meeting
is not held at such time, a special meeting for such purpose shall be held as
soon thereafter as practicable.
Section 5. Regular Meetings. Regular meetings of the Board of Directors
for the transaction of any business may be held at such times and places as may
be determined by the Board of Directors. The Secretary shall give to each
director at least five (5) days written notice of each such meeting.
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Section 6. Special Meetings. Special meetings of the Board of Directors
may be held at any time and place upon call by the Chairman of the Board, the
Chief Executive Officer, or a majority of the Directors. Notice of each such
meeting shall be given to each director by letter, telegram or telephone or in
person not less than two (2) days prior to such meeting; provided, however, that
such notice shall be deemed to have been waived by the directors attending or
voting at any such meeting, without protesting the lack of proper notice, and
may be waived in writing or by telegram by any director either before or after
such meeting. Unless otherwise indicated in the notice thereof, any business may
be transacted at such meeting.
Section 7. Quorum. At all meetings of the Board of Directors a majority
of the directors in office at the time shall constitute a quorum for the
transaction of business, but in no case shall such quorum be less than one-third
of the total authorized number of directors.
Section 8. Compensation. If so determined by the Board of Directors,
all or any members of the Board of Directors or of any committee of the Board
who are not Company employees shall be compensated for their services in such
capacities either a fixed sum for attendance at each meeting of the Board or of
such committee or such other amount as may be determined from time to time by
the Board of Directors. Compensation may be paid in cash and in the Company's
stock and stock equivalents. Directors may be reimbursed for expenses reasonably
incurred by them in attending such meetings.
ARTICLE IV.
COMMITTEES.
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 two or more of the directors of the Company, which to the extent
provided in said resolution or resolutions shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Company and may have power to authorize the seal of the Company to be
affixed to all papers which may require it. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
ARTICLE V.
OFFICERS.
Section 1. Officers Designated. The officers of the Company shall be
elected by the Board of Directors at their organization meeting or any other
meeting. The Board of Directors shall elect the executive officers of the
Company which may include a Chairman of the Board, President, and one or more
Vice Presidents (any one or more of whom may be designated as Executive Vice
Presidents, or as Senior Vice Presidents or by any other designations). In
addition thereto, the officers shall include a Controller, a General Counsel, a
Secretary and a Treasurer. In their discretion the Board of Directors may elect
one or more Assistant Secretaries and Assistant Treasurers and any other
additional officers. The
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Chairman of the Board shall be elected from among the directors. The other
officers may but need not be elected from among the directors. Any two offices
may be held by the same person, but in any case where the action of more than
one officer is required no one person shall act in more than one capacity.
Section 2. Tenure of Office. The officers of the Company shall hold
office until the next organization meeting of the Board of Directors and until
their respective successors are chosen and qualified, except in case of
resignation, death or removal. The Board of Directors may remove any officer at
any time with or without cause by the vote of the majority of the directors in
office at the time. A vacancy in any office may be filled by election by the
Board of Directors.
Section 3. Powers and Duties of Officers in General. The powers and
duties of the officers shall be exercised in all cases subject to such
directions as the Board of Directors may see fit to give. The respective powers
and duties hereinafter set forth are subject to alteration by the Board of
Directors. The Board of Directors is also authorized to delegate the duties of
any officer to any other officer, employee or committee and to require the
performance of duties in addition to those provided for herein. Subject to such
directions, if any, as the Board of Directors may give from time to time, the
chief executive officers of the Company are authorized to establish and to
modify from time to time an organization plan defining the respective duties and
functions of the officers of the Company.
Section 4. Chairman of the Board. The Chairman of the Board shall
preside at meetings of the shareholders and of the Board of Directors.
Section 5. Chief Executive Officer. The Chief Executive Officer shall
be either the Chairman of the Board and/or the President, as the Board of
Directors so designates, and he or she shall have general responsibility for the
major functions of the business of the Company and shall initiate and develop
broad Company policies.
Section 6. President; Vice Presidents. In the absence or disability of
the Chief Executive Officer, the President shall perform the Chief Executive
Officer's duties. In the absence or disability of the Chief Executive Officer
and the President, the Vice Presidents, in the order designated by the Board of
Directors, shall perform the Chief Executive Officer's duties. If so determined
by the Board of Directors, one Vice President may be designated as manager of
specific sectors, divisions, districts or such other unit or as being in charge
of specific functions, another as Vice President in Charge of Sales, and other
Vice Presidents as managers of specified divisions or sales districts of the
Company or as being in charge of specified functions.
Section 7. Controller, General Counsel, Secretary, and Treasurer. The
Controller, General Counsel, the Secretary, and the Treasurer shall perform such
duties as are indicated by their respective titles, subject to the provisions of
Section 3 of this Article. The Secretary shall have the custody of the corporate
seal.
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Section 8. Other Officers. All other officers shall have such powers
and duties as may be prescribed by the Board of Directors, or, in the absence of
their action, by the chief executive officers of the Company or by the
respective officers having supervision over them.
Section 9. Compensation. The Board of Directors is authorized to
determine, or to provide the method of determining, or to empower a committee of
its members to determine, the compensation of all officers.
Section 10. Bond. If so requested and authorized by the Board of
Directors, the Company shall furnish a fidelity bond in such sum and with such
security as the Board of Directors may require.
Section 11. Signing Checks and Other Instruments. The Board of
Directors is authorized to determine or provide the method of determining the
manner in which deeds, contracts and other obligations and instruments of the
Company shall be signed. However, persons doing business with the Company shall
be entitled to rely upon the action of the Chairman of the Board, the President,
any Vice President, the Secretary, the Treasurer, the Controller or General
Counsel in executing contracts and other obligations and instruments, of the
Company as having been duly authorized. The Board of Directors of the Company is
authorized to designate or provide the method of designating depositaries of the
funds of the Company and to determine or provide the method of determining the
manner in which checks, notes, bills of exchange and similar instruments shall
be signed, countersigned or endorsed.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company shall indemnify to the full extent permitted by law any
person made or threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Company, is or was a
director, officer, trustee, member, stockholder, partner, incorporator or
liquidator of a Subsidiary of the Company, or serves or served at the request of
the Company as a director, officer, trustee, member, stockholder, partner,
incorporator or liquidator of or in any other capacity for any other enterprise.
Expenses, including attorneys' fees, incurred by any such person in defending
any such action, suit or proceeding shall be paid or reimbursed by the Company
promptly upon demand by such person and, if any such demand is made in advance
of the final disposition of any such action, suit or proceeding, promptly upon
receipt by the Company of an undertaking of such person to repay such expenses
if it shall ultimately be determined that such person is not entitled to be
indemnified by the Company. The rights provided to any person by this by-law
shall be enforceable against the Company by such person, who shall be presumed
to have relied upon it in serving or continuing to serve as a director or
officer or in such other capacity as provided above. In addition, the rights
provided to any person by this by-law shall survive the termination of such
person as any such director, officer, trustee, member, stockholder, partner,
incorporator or liquidator and, insofar as such person served at the request of
the Company as a director,
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officer, trustee, member, stockholder, partner, incorporator or liquidator of or
in any other capacity for any other enterprise, shall survive the termination of
such request as to service prior to termination of such request. No amendment of
this by-law shall impair the rights of any person arising at any time with
respect to events occurring prior to such amendment.
Notwithstanding anything contained in this Article VI, except for
proceedings to enforce rights provided in this Article VI, the Company shall not
be obligated under this Article VI to provide any indemnification or any payment
or reimbursement of expenses to any director, officer or other person in
connection with a proceeding (or part thereof) initiated by such person (which
shall not include counterclaims or crossclaims initiated by others) unless the
Board of Directors has authorized or consented to such proceeding (or part
thereof) in a resolution adopted by the Board.
For purposes of this by-law, the term "Subsidiary" shall mean any
corporation, partnership, limited liability company or other entity in which the
Company owns, directly or indirectly, a majority of the economic or voting
ownership interest; the term "other enterprise" shall include any corporation,
partnership, limited liability company, joint venture, trust, association or
other unincorporated organization or other entity and any employee benefit plan;
the term "officer," when used with respect to the Company, shall refer to any
officer elected by or appointed pursuant to authority granted by the Board of
Directors of the Company pursuant to Article V of these By-Laws, when used with
respect to a Subsidiary or other enterprise that is a corporation, shall refer
to any person elected or appointed pursuant to the by-laws of such Subsidiary or
other enterprise or chosen in such manner as is prescribed by the by-laws of
such Subsidiary or other enterprise or determined by the Board of Directors of
such Subsidiary or other enterprise, and when used with respect to a Subsidiary
or other enterprise that is not a corporation or is organized in a foreign
jurisdiction, the term "officer" shall include in addition to any officer of
such entity, any person serving in a similar capacity or as the manager of such
entity; service "at the request of the Company" shall include service as a
director or officer of the Company which imposes duties on, or involves services
by, such director or officer with respect to an employee benefit plan, its
participants or beneficiaries; any excise taxes assessed on a person with
respect to an employee benefit plan, its participants or beneficiaries; any
excise taxes assessed on a person with respect to an employee benefit plan shall
be deemed to be indemnifiable expenses; and action by a person with respect to
an employee benefit plan which such person reasonably believes to be in the
interest of the participants and beneficiaries of such plan shall be deemed to
be action not opposed to the best interests of the Company.
To the extent authorized from time to time by the Board of Directors,
the Company may provide to (i) any one or more employees and other agents of the
Company, (ii) any one or more officers, employees and other agents of any
Subsidiary and (iii) any one or more directors, officers, employees and other
agents of any other enterprise, rights of indemnification and to receive payment
or reimbursement of expenses, including attorneys' fees, that are similar to the
rights conferred in this Article VI on directors and officers of the Company or
any Subsidiary or other enterprise. Any such rights shall have the same force
and effect as they would have if they were conferred in this Article VI.
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Nothing in this Article VI shall limit the power of the Company or the
Board of Directors to provide rights of indemnification and to make payment and
reimbursement of expenses, including attorneys' fees, to directors, officers,
employees, agents and other persons otherwise than pursuant to this Article VI.
ARTICLE VII.
CORPORATE SEAL.
The corporate seal, circular in form, shall have inscribed thereon the
name of the Company and the words "Corporate Seal--Delaware."
ARTICLE VIII.
RECORD DATES.
The Board of Directors may close the stock transfer books of the
Company for a period not exceeding sixty (60) days preceding the date of any
meeting of the shareholders, or the date for the payment of any dividend, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of shares shall go into effect; provided, however, that in lieu of
closing the stock transfer books as aforesaid, the Board of Directors may fix in
advance a date, not exceeding sixty (60) days preceding the date of any meeting
of shareholders, or the date for the payment of any dividend, or the date for
the allotment of rights, or the date when any change or conversion or exchange
of shares shall go into effect, as a record date for the determination of the
shareholders entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of shares, and in such case such shareholders,
and only such shareholders as shall be shareholders of record on the date so
fixed, shall be entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend or to receive such
allotment of rights or to exercise such rights as the case may be,
notwithstanding any transfer of any shares on the books of the Company after any
such record date fixed as aforesaid.
ARTICLE IX.
FISCAL YEAR.
The fiscal year of the Company shall end on the Friday nearest June 30
unless and until the Board of Directors shall otherwise determine.
ARTICLE X.
AMENDMENTS.
These By-Laws may be made or altered in any respect in whole or in part
by the affirmative vote of the holders of a majority of the shares entitled to
vote thereon at any annual or special meeting of the shareholders, if notice of
the proposed alteration or change to be made is properly brought before the
meeting under these By-Laws. The By-Laws may
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also be made or altered in any respect in whole or in part, by the affirmative
vote of the majority of the directors then comprising the Board of Directors.
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