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
Date of Report (Date of earliest event reported) January 17,
1995
(Exact name of registrant as specified in charter) DDL
Electronics, Inc.
(State or other jurisdiction of incorporation) Delaware
(Commission file number) 1-8101
IRS employer identification No. 33-0213512
(Address of principal executive offices) 7320 SW Hunziker Road
#300, Tigard, Oregon 97223-2302
Registrant's telephone number, including area code (503)620-1789
(Former name or former address, if changed since last report)
1270 NW 167th Place, Beaverton, Oregon 97006
<PAGE>
ITEM 5.
On March 21, 1995, the Board of Directors of DDL Electronics,
Inc. amended and restated the Company's Bylaws as contained in
Exhibit 3.1 above.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act
of 1934, the registrant has duly caused this report to be siugned
on its behalf by the undersigned thereunto duly authorized.
DDL ELECTRONICS, INC.
By: /s/ M. Charles Van Rossen
M. Charles Van Rossen
Vice President, Finance
(Principal Financial Officer)
Dated March 22, 1995
DDL Electronics, Inc.
(a Delaware corporation)
BYLAWS
(Amended and Restated Effective March 21, 1995)
ARTICLE I
Offices
SECTION 1.01 Registered Office. The registered office of DDL
Electronics, Inc. (the "Corporation") in the State of Delaware
shall be at 1209 Orange Street, City of Wilmington, County of New
Castle, and the name of the registered agent in charge thereof
shall be The Corporation Trust Company.
SECTION 1.02 Other Offices. The Corporation may also have an
office or offices at such other place or places, either within or
without the State of Delaware, as the Board of Directors (the
"Board") may from time to time determine or as the business of
the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 2.01 Annual Meetings. Annual meetings of the
stockholders of the Corporation for the purpose of electing
directors and for the transaction of such other proper business
as may come before such meetings may be held at such time, date
and place as the Board shall determine by resolution.
SECTION 2.02 Special Meetings. A special meeting of the
stockholders for the transaction of any proper business may be
called at any time by the Board for a majority of the Board.
Special meetings may not be called by any other person or persons
or in any other manner.
SECTION 2.03 Place of Meetings. All meetings of the
stockholders shall be held at such places, within or without the
State of Delaware, as may from time to time be designated by the
person or persons calling the respective meeting and specified in
the respective notices or waivers of notice thereof.
SECTION 2.04 Notice of Meetings. Except as otherwise required
by law, notice of each meeting of the stockholders, whether
annual or special, shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to each
stockholder of record entitled to vote at such meeting by
delivering a typewritten or printed notice thereof to him
personally, or by depositing such notice in the United States
mail, in a postage prepaid envelope, directed to him at his post
office address furnished by him to the Secretary of the
Corporation for such purpose or, if he shall not have furnished
to the Secretary his address for such purpose, then at his post
office address last known to the Secretary, or by transmitting a
notice thereof to him at such address by telegraph, cable, or
wireless. Except as otherwise expressly required by law, no
publication of any notice of a meeting of the stockholders shall
be required. Every notice of a meeting of the stockholders shall
state the place, date and hour of the meeting, and, in the case
of a special meeting, shall also state the purpose or purposes
for which the meeting is called. Notice of any meeting of
stockholders shall not be required to be given to any stockholder
who shall have waived such notice and such notice shall be deemed
waived by any stockholder who shall attend such meeting in person
or by proxy, except as a stockholder who shall attend such
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. Except as otherwise
expressly required by law, notice of any adjourned meeting of the
stockholders need not be given if the time and place thereof are
announced at the meeting at which the adjournment is taken.
SECTION 2.05 Quorum. Except in the case of any meeting for the
election of directors summarily ordered as provided by law, the
holders of record of a majority in voting interest of the shares
of stock of the Corporation entitled to be voted thereat, present
in person or by proxy, shall constitute a quorum for the
transaction of business at any meeting of the stockholders of the
Corporation or any adjournment thereof. In the absence of a
quorum at any meeting or any adjournment thereof, a majority in
voting interest of the stockholders present in person or by proxy
and entitled to vote thereat, in the absence therefrom of all the
stockholders, any officer entitled to preside at, or to act as
secretary of, such meeting may adjourn such meeting from time to
time. At any such adjourned meeting at which a quorum is present
any business may be transacted which might have been transacted
at the meeting as originally called.
SECTION 2.06 Voting.
(a) Each stockholder shall, at each meeting of the stockholders,
be entitled to vote in person or by proxy each share or
fractional share of the stock of the Corporation having voting
rights on the matter in question and which shall have been held
by him and registered in his name on the books of the
Corporation:
(i) on the date fixed pursuant to Section 6.05 of these Bylaws as
the record date for the determination of stockholders entitled to
notice of and to vote at such meeting, or
(ii) if no such record date shall have been so fixed, then (a) at
the close of business on the day next preceding the day on which
notice of the meeting shall be given or (b) if notice of the
meeting shall be waived, at the close of business on the day next
preceding the day on which the meeting shall be held.
(b) Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote
in the election of directors in such other corporation is held,
directly or indirectly by the Corporation, shall neither be
entitled to vote nor be counted for quorum purposes. Persons
holding stock of the Corporation in a fiduciary capacity shall be
entitled to vote such stock. Persons whose stock is pledged
shall be entitled to vote, unless in the transfer by the pledgor
on the books of the Corporation he shall have expressly empowered
the pledgee to vote thereon, in which case only the pledgee, or
his proxy, may represent such stock and vote thereon. Stock
having voting power standing of record in the names of two or
more persons, whether fiduciaries, members of a partnership,
joint tenants in common, tenants by entirety or otherwise or with
respect to which two or more persons have the same fiduciary
relationship, shall be voted in accordance with the provisions of
the General Corporation Law of the State of Delaware.
(c) Any such voting rights may be exercised by the stockholder
entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such stockholder or by his
attorney thereunto authorized and delivered to the secretary of
the meeting; provided, however, that no proxy shall be voted or
acted upon after three years from its date unless said proxy
shall provide for a longer period. The attendance at any meeting
of a stockholder who may theretofore have given a proxy shall not
have the effect of revoking the same unless he shall in writing
so notify the secretary of the meeting prior to the voting of the
proxy. At any meeting of the stockholders all matters, except as
otherwise provided in the Certificate of Incorporation, in these
Bylaws or by law, shall be decided by the vote of a majority in
voting interest of the stockholders present in person or by proxy
and entitled to vote thereat and thereon, a quorum being present.
The voting at any meeting of the stockholders on any question
need not be by ballot, unless so directed by the chairman of the
meeting. On a vote by ballot each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and
it shall state the number of shares voted.
SECTION 2.07 List of Stockholders. The Secretary of the
Corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting during
ordinary business hours, for a period of at least ten (1O) days
prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list 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 2.08 Judges. If at any meeting of the stockholders a
vote by written ballot shall be taken on any question, the
chairman of such meeting may appoint a judge or judges to act
with respect to such vote. Each judge so appointed shall first
subscribe an oath faithfully to execute the duties of a judge at
such meeting with strict impartiality and according to the best
of his ability. Such judges shall decide upon the qualification
of the voters and shall report the number of shares represented
at the meeting and entitled to vote on such question shall
conduct and accept the votes, and, when the voting is completed,
shall ascertain and report the number of shares voted
respectively for and against the question. Reports of judges
shall be in writing and subscribed and delivered by them to the
Secretary of the Corporation. The judges need not be
stockholders of the Corporation, and any officer of the
Corporation may be a judge on any question other than a vote for
or against a proposal in which he shall have a material interest.
SECTION 2.09 No Action Without Meeting. No action may be taken
by stockholders except at an annual or special meeting of
stockholders. No action may be taken by stockholders by written
consent.
SECTION 2.10. Stockholder Proposals. Only stockholders of
record shall be entitled to present a stockholder proposal at any
meeting of the stockholders. Before a stockholder of record may
present such a proposal, the stockholder of record must deliver
timely notice of such proposal to the Company. To be timely, a
stockholder of record's notice of a proposal to be presented at
an annual meeting shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than
sixty (60) days nor more than ninety (90) days prior to the first
anniversary of the preceding year's annual meeting of
stockholders; provided, however, that in the event that the date
of the annual meeting is more than thirty (30) days prior to or
more than sixty (60) days after such anniversary date, notice by
the stockholder of record to be timely must be so delivered not
earlier than the ninetieth (90th) day prior to such annual
meeting and not later than the close of business on the later of
the sixtieth (60th) day prior to such annual meeting or the tenth
(10th) day following the date on which public announcement of the
date of such meeting is first made. A stockholder of record's
notice of a proposal to be presented at a special meeting shall
be delivered to the Secretary at the principal executive offices
of the Corporation not earlier than the ninetieth (90th) day
prior to such special meeting and not later than the close of
business on the later of the sixtieth (60th) day prior to such
special meeting or the tenth (10th) day following the date on
which public announcement of the date of such special meeting is
first made.
ARTICLE III
Board of Directors
SECTION 3.01 General Powers. The property, business and affairs
of the Corporation shall be managed by the Board.
SECTION 3.02 Number and Term of Office. The number of directors
shall be four (4). Directors need not be stockholders. Each of
the directors of the Corporation shall hold office until his
successor shall have been duly elected and shall qualify or until
he shall resign or shall have been removed in the manner
hereinafter provided.
SECTION 3.03 Election of Directors. The directors shall be
elected annually by the stockholders of the Corporation and the
persons receiving the greatest number of votes, up to the number
of directors then to be elected, shall be the persons then
elected. The election of directors is subject to any provisions
contained in the Certificate of Incorporation relating thereto,
including any provisions for a classified Board and for
cumulative voting.
SECTION 3.04 Resignations. Any director of the Corporation may
resign at any time by giving written notice to the Board or to
the Secretary of the Corporation. Any such resignation shall
take effect at the time specified therein, or, if the time be not
specified, it shall take effect immediately upon its receipt; and
unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.05 Vacancies. Except as otherwise provided in the
Certificate of Incorporation, any vacancy in the Board, whether
because of death, resignation, disqualification, an increase in
the number of directors, or any other cause, can be filled only
by a vote of the majority of the remaining directors, although
less than a quorum. Subject to further Resolution of the Board
prescribing a shorter time, each director so chosen to fill a
vacancy shall hold office until his successor shall have been
elected and shall qualify or until he shall resign or shall have
been removed in the manner hereinafter provided.
SECTION 3.06 Place of Meeting, Etc. The Board may hold any of
its meetings at such place or places within or without the State
of Delaware as the Board may from time to time by resolution
designate or as shall be designated by the person or persons
calling the meeting or in the notice or a waiver of notice of any
such meeting. Directors may participate in any regular or
special meeting of the Board by means of conference telephone or
similar communications equipment pursuant to which all persons
participating in the meeting of the Board can hear each other,
and such participation shall constitute presence in person at
such meeting.
SECTION 3.07 First Meeting. The Board shall meet as soon as
practicable after each annual election of directors and notice of
such first meeting shall not be required.
SECTION 3.08 Regular Meetings. Regular meetings of the Board
may be held at such times as the Board shall from time to time by
resolution determine. If any day fixed for a regular meeting
shall be a legal holiday at the place where the meeting is to be
held, then the meeting shall be held at the same hour and place
on the next succeeding business day not a legal holiday. Except
as provided by law, notice of regular meetings need not be given.
SECTION 3.09 Special Meetings. Special meetings of the Board
shall be held whenever called by the President or a majority of
the authorized number of directors. Except as otherwise provided
by law or by these Bylaws, notice of the time and place of each
such special meeting shall be mailed to each director, addressed
to him at his residence or usual place of business, at least five
(5) days before the day on which the meeting is to be held, or
shall be sent to him at such place by telegraph or cable or be
delivered personally not less than forty-eight (48) hours before
the time at which the meeting is to be held. Except where
otherwise required by law or by these Bylaws, notice of the
purpose of a special meeting need not be given. Notice of any
meeting of the Board shall not be required to be given to any
director who is present at such meeting, except a director who
shall attend such 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.
SECTION 3.10 Quorum and Manner of Acting. Except as otherwise
provided in these Bylaws or by law, the presence of a majority of
the authorized number of directors shall be required to
constitute a quorum for the transaction of business at any
meeting of the Board, and all matters shall be decided at any
such meeting, a quorum being present, by the affirmative votes of
a majority of the directors present. In the absence of a quorum,
a majority of directors present at any meeting may adjourn the
same from time to time until a quorum shall be present. Notice
of any adjourned meeting need not be given. The directors shall
act only as a Board, and the individual directors shall have no
power as such.
SECTION 3.11 Action by Consent. Any action required or
permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if a written
consent thereto is signed by all 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.
SECTION 3.12 Removal of Directors. Subject to the provisions of
the Certificate of Incorporation, a director may be removed only
with cause and by the affirmative vote of the stockholders
holding a majority of the issued and outstanding shares of the
Corporation, given at a special meeting of the stockholders
called for the purpose.
SECTION 3.13 Compensation. The directors shall receive only
such compensation for their services as directors as may be
allowed by resolution of the Board. The Board may also provide
that the Corporation shall reimburse each such director for any
expense incurred by him on account of his attendance at any
meetings of the Board or Committees of the Board. Neither the
payment of such compensation nor the reimbursement of such
expenses shall be construed to preclude any director from serving
the Corporation or its subsidiaries in any other capacity and
receiving compensation therefor.
SECTION 3.14 Committees. The Board may, by resolution 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. Any such committee, to the extent provided in the
resolution of the Board and except as otherwise limited by law,
shall have and may exercise all the powers and authority of the
Board 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. Any such committee
shall keep written minutes of its meetings and report the same to
the Board at the next regular meeting of the Board. In the
absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or
disqualified member.
ARTICLE IV
Officers
SECTION 4.01 Number. The officers of the Corporation shall be a
President, one or more Vice Presidents (the number thereof and
their respective titles to be determined by the Board), a
Secretary and a Treasurer.
SECTION 4.02 Election, Term of Office and Qualifications. The
officers of the Corporation, except such officers as may be
appointed in accordance with Section 4.03, shall be elected
annually by the Board at the first meeting thereof held after the
election thereof. Each officer shall hold office until his
successor shall have been duly chosen and shall qualify or until
his resignation or removal in the manner hereinafter provided.
SECTION 4.03 Assistants, Agents and Employees, Etc. In addition
to the officers specified in Section 4.01, the Board may appoint
other assistants, agents and employees as it may deem necessary
or advisable, including one or more Assistant Secretaries, and
one or more Assistant Treasurers, each of whom shall hold office
for such period, have such authority, and perform such duties as
the Board may from time to time determine. The Board may
delegate to any officer of the Corporation or any committee of
the Board the power to appoint, remove and prescribe the duties
of any such assistants, agents or employees.
SECTION 4.04 Removal. Any officer, assistant, agent or employee
of the Corporation may be removed, with or without cause, at any
time: (i) in the case of an officer, assistant, agent or employee
appointed by the Board, only by resolution of the Board; and (ii)
in the case of an officer, assistant, agent or employee, by any
officer of the Corporation or committee of the Board upon whom or
which such power of removal may be conferred by the Board.
SECTION 4.05 Resignations. Any officer or assistant may resign
at any time by giving written notice of his resignation to the
Board or the Secretary of the Corporation. Any such resignation
shall take effect at the time specified therein or, if the time
be not specified, upon receipt thereof by the Board or the
Secretary, as the case may be; and, unless otherwise specified
therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 4.06 Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification, or other cause,
may be filled for the unexpired portion of the term thereof in
the manner prescribed in these Bylaws for regular appointments or
elections to such office.
SECTION 4.07 The President. The President of the Corporation
shall be the chief executive officer of the Corporation and shall
have, subject to the control of the Board, general and active
supervision and management over the business of the Corporation
and over its several officers, assistants, agents and employees.
SECTION 4.08 The Vice Presidents. Each Vice President shall
have such powers and perform such duties as the Board may from
time to time prescribe. At the request of the President, or in
case of the President's absence or inability to act upon the
request of the Board, a Vice President shall perform the duties
of the President and when so acting, shall have all the powers
of, and be subject to all the restrictions upon, the President.
SECTION 4.09 The Secretary. The Secretary shall, if present,
record the proceedings of all meetings of the Board, of the
stockholders, and of all committees of which a secretary shall
not have been appointed in one or more books provided for that
purpose; he shall see that all notices are duly given in
accordance with these Bylaws and as required by law; he shall be
custodian of the seal of the Corporation and shall affix and
attest the seal to all documents to be executed on behalf of the
Corporation under its seal; and, in general, he shall perform all
the duties incident to the office of Secretary and such other
duties as may from time to time be assigned to him by the Board.
SECTION 4.10 The Treasurer. The Treasurer shall have the
general care and custody of the funds and securities of the
Corporation, and shall deposit all such funds in the name of the
Corporation in such banks, trust companies or other depositories
as shall be selected by the Board. He shall receive, and give
receipts for, moneys due and payable to the Corporation from any
source whatsoever. He shall exercise general supervision over
expenditures and disbursements made by officers, agents and
employees of the Corporation and the preparation of such records
and reports in connection therewith as may be necessary or
desirable. He shall, in general, perform all other duties
incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Board.
SECTION 4.11 Compensation. The compensation of the officers of
the Corporation shall be fixed from time to time by the Board.
None of such officers shall be prevented from receiving such
compensation by reason of the fact that he is also a director of
the Corporation. Nothing contained herein shall preclude any
officer from serving the Corporation, or any subsidiary
corporation, in any other capacity and receiving such
compensation by reason of the fact that he is also a director of
the Corporation. Nothing contained herein shall preclude any
officer from serving the Corporation, or any subsidiary
corporation, in any other capacity and receiving proper
compensation therefor.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 5.01 Execution of Contracts. The Board, except as in
these Bylaws otherwise provided, may authorize any officer or
officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the Corporation,
and such authority may be general or confined to specific
instances; and unless so authorized by the Board or by these
Bylaws, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement
or to pledge its credit or to render it liable for any purpose or
in any amount.
SECTION 5.02 Checks, Drafts, Etc. All checks, drafts or other
orders for payment of money, notes or other evidence of
indebtedness, issued in the name of or payable to the
Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be
determined by resolution of the Board. Each such officer,
assistant, agent or attorney shall give such bond, if any, as the
Board may require.
SECTION 5.03 Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other
depositories as the Board may select, or as may be selected by
any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such
power shall have been delegated by the Board. For the purpose of
deposit and for the purpose of collection for the account of the
Corporation, the President, any Vice President or the Treasurer
(or any other officer or officers, assistant or assistants, agent
or agents, or attorney or attorneys of the Corporation who shall
from time to time be determined by the Board) may endorse, assign
and deliver checks, drafts and other orders for the payment of
money which are payable to the order of the Corporation.
SECTION 5.04 General and Special Bank Accounts. The Board may
from time to time authorize the opening and keeping of general
and special bank accounts with such banks, trust companies or
other depositories as the Board may select or as may be selected
by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such
power shall have been delegated by the Board. The Board may make
such special rules and regulations with respect to such bank
accounts, not inconsistent with the provisions of these Bylaws,
as it may deem expedient.
ARTICLE VI
Shares and Their Transfer
SECTION 6.01 Certificates for Stock. Every owner of stock of
the Corporation shall be entitled to have a certificate or
certificates, to be in such form as the Board shall prescribe,
certifying the number and class of shares of the stock of the
Corporation owned by him. The certificates representing shares
of such stock shall be numbered in the order in which they shall
be issued and shall be signed in the name of the Corporation by
the President or a Vice President, and by the Secretary or an
Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any of or all of the signatures on the certificates
may be a facsimile. In case any officer, transfer agent or
registrar who has signed, or whose facsimile signature has been
placed upon, any such certificate, shall have ceased to be such
officer, transfer agent or registrar before such certificate is
issued, such certificate may nevertheless be issued by the
Corporation with the same effect as though the person who signed
such certificate, or whose facsimile signature shall have been
placed thereupon, were such officer, transfer agent or registrar
at the date of issue. A record shall be kept of the respective
names of the persons, firms or corporations owning the stock
represented by such certificates, the number and class of shares
represented by such certificates, respectively, and the
respective dates thereof, and in case of cancellation, the
respective dates of cancellation. Every certificate surrendered
to the Corporation for exchange or transfer shall be canceled,
and no new certificate or certificates shall be issued in
exchange for any existing certificate until such existing
certificate shall have been so canceled, except in cases provided
for in Section 6.04.
SECTION 6.02 Transfers of Stock. Transfers of shares of stock
of the Corporation shall be made only on the books of the
Corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed
with the Secretary, or with a transfer clerk or a transfer agent
appointed as provided in Section 6.03, and upon surrender of the
certificate or certificates for such shares properly endorsed and
the payment of all taxes thereon. The person in whose name
shares of stock stand on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the
Corporation. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, such fact shall be so
expressed in the entry of transfer if, when the certificate or
certificates shall be presented to the Corporation for transfer,
both the transferor and the transferee request the Corporation to
do so.
SECTION 6.03 Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these
Bylaws, concerning the issue, transfer and registration of
certificates for shares of the stock of the Corporation. It may
appoint, or authorize any officer or officers to appoint, one or
more transfer clerks or one or more transfer agents and one or
more registrars, and may require all certificates for stock to
bear the signature or signatures of any of them.
SECTION 6.04 Lost, Stolen, Destroyed, and Mutilated
Certificates. In any case of loss, theft, destruction, or
mutilation of any certificate of stock, another may be issued in
its place upon proof of such loss, theft, destruction, or
mutilation and upon the giving of a bond of indemnity to the
Corporation in such form and in such sum as the Board may direct;
provided, however, that a new certificate may be issued without
requiring any bond when, in the judgment of the Board, it is
proper so to do.
SECTION 6.05 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 any rights in
respect of any other change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board may fix, in
advance, a record date, which shall not be more than sixty (60)
nor less than ten (10) days before the date of such meeting, nor
more than sixty (60) days prior to any other action. If in any
case involving the determination of stockholders for any purpose
other than notice of or voting at a meeting of stockholders or
expressing consent to corporate action without a meeting the
Board shall not fix such a record date, the record date for
determining stockholders for such purpose shall be the close of
business on the day on which the Board shall adopt the resolution
relating thereto. A determination of stockholders entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of such meeting; provided, however, that the
Board may fix a new record date for the adjourned meeting.
ARTICLE VII
Indemnification
SECTION 7.01 Actions, Etc. Other Than by or in the Right of the
Corporation. Any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action, suit, proceeding or investigation, whether civil,
criminal, administrative, and whether external or internal - to
the Corporation (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, while serving
as a director or officer, is or was serving at the request of the
Corporation as a director, officer, employee, trustee or agent of
the Corporation or another corporation, partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, trustee, employee or agent or in any other
capacity, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by law, including,
but not limited to, the Delaware General Corporation Law, as the
same exists or may thereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than
said Law permitted the Corporation to provide prior to such
amendment), against all 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, 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, that he had reasonable cause to
believe that his conduct was unlawful.
SECTION 7.02 Actions, Etc. by or in the Right of the
Corporation. Any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
judicial 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 or officer, employee or agent of the
Corporation, or, while serving as a director or officer, is or
was serving at the request of the Corporation as a director,
officer, employee, trustee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in
an official capacity as a director, officer, trustee, employee or
agent or in any other capacity, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by
law, including, but not limited to, the Delaware General
Corporation Law, as the same exists or may thereafter be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader
indemnification rights than said Law permitted the Corporation to
provide prior to such amendment), against all 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 to the Corporation unless and only to
the extent that the Court of Chancery 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 or such other court shall deem proper.
SECTION 7.03 Determination of Right of Indemnification. Any
indemnification under Section 7.01 or 7.02 (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 Section 7.01 and 7.02. Such determination
shall be made (i) by the Board by a majority vote of a quorum
consisting of directors who were not parties to such action, suit
or proceeding, or (ii) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
SECTION 7.04 Indemnification Against Expenses of Successful
Party. Notwithstanding the other provisions of this Article, 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 Section
7.01 or 7.02, or in defense of any claim, issue or matter
therein, he shall be indemnified against all expenses (including
attorneys' fees) incurred by him in connection therewith.
SECTION 7.05 Prepaid Expenses. Expenses incurred by an officer
or director in defending a civil or criminal action, suit or
proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director or officer to
repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation as authorized
in this Article. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as
the Board deems appropriate.
SECTION 7.06 Right to Indemnification Upon Application;
Procedure Upon Application. Any indemnification under or
advancement of expenses provided by, or granted pursuant to, this
Article shall be made promptly, and in any event within ninety
days, upon written request of the director or officer, employee
or agent, unless with respect to applications under Section 7.02
and 7.03, a determination is reasonably and promptly made by the
Board by a majority vote of quorum of disinterested directors
that such director or officer, employee or agent acted in a
manner set forth in such Sections as to justify the Corporation's
not indemnifying the director or officer, employee or agent. In
the event no quorum of disinterested directors is obtainable, the
Board shall promptly direct that independent legal counsel shall
decide whether the director or officer, employee or agent acted
in a manner set forth in such Sections as to justify the
Corporations not indemnifying or making an advance to the
director or officer or, in the case of indemnification, employee
or agent. The right to indemnification under or advancement of
expenses provided by this Article shall be enforceable by the
director, officer, employee or agent in any court of competent
jurisdiction, if the Board or independent legal counsel denies
the claim, in whole or in part, or if no disposition of such
claim is made within ninety days. The director's, officer's,
employee's or agent's expenses incurred in connection with
successfully establishing his right to indemnification or
advancement of expenses, in whole or in part, in any such
proceeding shall also be indemnified by the Corporation.
SECTION 7.07 Other Rights and Remedies. The indemnification
under and advancement of expenses provided by, or granted
pursuant to, this Article shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under any Bylaws,
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 right to be
indemnified or to the reimbursement or advancement of expenses
pursuant hereto (i) is a contract right based upon good and
valuable consideration, pursuant to which the person entitled
thereto may bring suit as if the provisions hereof were set forth
in a separate written contract between the Corporation and the
director or officer, employee or agent, (ii) is intended to be
retroactive and shall be available with respect to events
occurring prior to the adoption hereof, and (iii) shall continue
to exist after the rescission or restrictive modification hereof
with respect to events occurring prior thereto.
SECTION 7.08 Insurance. Upon resolution passed by the Board,
the Corporation may 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, trustee 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 Article.
SECTION 7.09 Constituent Corporations. For the purposes of this
Article, references to "the Corporation" include any constituent
corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation, so that any person who is or
was a director, officer, employee, trustee or agent of such a
constituent corporation or is or was serving at the request of
such constituent corporation as a director, officer, employee,
trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same
position under the provisions of this Article with respect to the
resulting or surviving corporation as he would if he had served
the resulting or surviving corporation in the same capacity.
SECTION 7.10 Other Enterprises, Fines, and Serving at
Corporation's Request. For purposes of this Article, references
to "other enterprises" shall include employee benefit plan;
references to "fines" shall include any excise taxes assessed on
a person with respect to any employee benefit plan; and
references to "serving at the request of the Corporation" shall
include any service as a director, officer, employee, trustee or
agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, trustee or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article.
SECTION 7.11 Savings Clause. If this Article or any portion
thereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless
indemnify each director, officer, employee or agent as to
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit,
proceeding or investigation, whether civil, criminal or
administrative, and whether internal or external, including a
grand jury proceeding and an action or suit brought by or in the
right of the Corporation, to the full extent permitted by any
applicable portion of this Article that shall not have been
invalidated or by any other applicable law.
SECTION 7.12 Liability of Directors for Breaches of Fiduciary
Duty. Notwithstanding any provision to the contrary contained in
these Bylaws, to the fullest extent permitted by the Delaware
General Corporation Law as the same exists or may hereafter be
amended, a director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director.
ARTICLE VIII
Miscellaneous
SECTION 8.01 Seal. The Board shall provide a corporate seal,
which shall be in the form of a circle and shall bear the name of
the Corporation and words and figures showing that the
Corporation was incorporated in the State of Delaware and the
year of incorporation.
SECTION 8.02 Waiver of Notices. Whenever notice is required to
be given by these Bylaws or the Certificate of Incorporation or
by law, the person entitled to said notice may waive such notice
in writing, either before or after the time stated therein, and
such waiver shall be deemed equivalent to notice.
SECTION 8.03 Amendments. Notwithstanding any provision herein
to the contrary, these Bylaws, or any of them, may be altered,
amended or repealed, and new Bylaws may be made only (i) by the
Board, by the affirmative vote of a majority of the number of the
Board; or (ii) by the stockholders, by an affirmative vote of the
stockholders holding a majority of the issued and outstanding
shares of the Corporation given at any annual meeting or special
meeting of the stockholders, provided that notice of such
proposed amendment, modification, repeal or adoption is timely
given in the manner hereinabove provided. Any Bylaws made or
altered by the stockholders may be altered or repealed by either
the Board or the stockholders.
