Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - MERIX CORP | d8-k.htm |
| EX-3.1 - EXHIBIT 3.1 - MERIX CORP | ex3_1.htm |
| EX-4.1 - EXHIBIT 4.1 - MERIX CORP | ex4_1.htm |
EXHIBIT
3.2
AMENDED
AND RESTATED
BYLAWS
OF
MERIX
CORPORATION
An Oregon
Corporation
TABLE
OF CONTENTS
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Page
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OFFICES
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1
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1.1
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Registered
Office and Agent
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1
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1.2
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Other
Offices
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1
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ARTICLE
TWO:
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SHAREHOLDERS
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1
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2.1
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Annual
Meeting
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1
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2.2
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Special
Meetings
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1
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2.3
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Place
of Meeting
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1
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2.4
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Notice
of Meeting
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2
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2.5
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Quorum;
Manner of Acting
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2
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2.6
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Proxies
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2
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2.7
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Voting
of Shares
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2
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2.8
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Action
by Shareholders without a Meeting
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2
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ARTICLE
THREE:
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BOARD
OF DIRECTORS
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3
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3.1
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General
Powers
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3
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3.2
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Number
and Qualifications
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3
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3.3
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Election
and Tenure
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3
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3.4
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Vacancies
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3
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3.5
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Removal
of Directors
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3
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3.6
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Regular
Meetings
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3
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3.7
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Special
Meetings
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3
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3.8
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Notice;
Waiver
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3
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3.9
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Quorum
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4
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3.10
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Manner
of Acting
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4
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3.11
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Presumption
of Assent
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4
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3.12
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Action
by Directors without a Meeting
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4
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3.13
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Telephonic
Meetings
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4
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ARTICLE
FOUR:
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COMMITTEES
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4
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4.1
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Designation
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4
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4.2
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Number;
Qualification; Term
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4
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4.3
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Authority
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4
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4.4
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Committee
Changes
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4
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4.5
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Alternate
Members of Committees
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5
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4.6
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Regular
Meetings
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5
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4.7
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Special
Meetings
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5
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4.8
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Quorum;
Majority Vote
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5
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4.9
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Minutes
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5
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4.10
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Responsibility
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5
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ARTICLE
FIVE:
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OFFICERS
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5
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5.1
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Number
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5
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5.2
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Election
and Term of Office
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5
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5.3
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Removal
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6
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5.4
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Vacancies
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6
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5.5
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President
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6
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5.6
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Vice
Presidents
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6
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5.7
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Secretary
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6
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5.8
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Treasurer
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6
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ARTICLE
SIX:
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CORPORATE
INSTRUMENTS, CONTRACTS, CHECKS AND DEPOSITS
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7
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6.1
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Execution
of Corporate Instruments Generally
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7
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6.2
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Contracts
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7
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6.3
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Checks,
Drafts, Etc
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7
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6.4
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Deposits
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7
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ARTICLE
SEVEN:
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CERTIFICATES
FOR SHARES AND THEIR TRANSFER
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7
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7.1
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Certificates
for Shares
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7
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7.2
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Transfer
of Shares
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7
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7.3
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Lost
Certificates
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8
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7.4
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Record
Date
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8
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ARTICLE
EIGHT:
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INDEMNIFICATION
AND INSURANCE
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8
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8.1
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Indemnification,
Generally
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8
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8.2
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Definitions
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8
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8.3
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No
Presumption of Bad Faith
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9
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8.4
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Right
to Indemnification
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9
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8.5
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Indemnification
in Proceedings by or in the Right of the Corporation
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10
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8.6
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Determination
of Standards of Conduct
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10
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8.7
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Advance
for Expenses
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10
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8.8
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Indemnification
of Officers
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11
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8.9
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Indemnity
Agreements
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11
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8.10
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Insurance
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11
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8.11
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Nonexclusive
Right
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11
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ARTICLE
NINE:
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BOOKS
AND RECORDS
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11
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ARTICLE
TEN:
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MISCELLANEOUS
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12
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10.1
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Severability
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12
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10.2
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Amendments
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12
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10.3
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Seal
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12
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10.4
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Fiscal
Year
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12
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BYLAWS
OF
MERIX
CORPORATION
An Oregon
Corporation
PREAMBLE
These
bylaws are subject to, and governed by, the Oregon Business Corporation Act
(the “OBCA”) and the
articles of incorporation of Merix Corporation, an Oregon corporation
(the “Corporation”). In
the event of a direct conflict between the provisions of these bylaws and the
mandatory provisions of the OBCA or the provisions of the articles of
incorporation of the Corporation, such provisions of the OBCA or the articles of
incorporation of the Corporation, as the case may be, will be
controlling.
ARTICLE
ONE: OFFICES
1.1 Registered Office and
Agent. The registered office and registered agent of the
Corporation shall be as designated from time to time by the appropriate filing
by the Corporation in the office of the Secretary of State of the State of
Oregon.
1.2 Other
Offices. The Corporation may also have offices at such other
places, both within and without the State of Oregon, as the board of directors
of the Corporation (the “Board”) may from time
to time determine or as the business of the Corporation may
require.
ARTICLE
TWO: SHAREHOLDERS
2.1 Annual
Meeting. An annual meeting of shareholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the Board and stated in the notice of the
meeting or in a duly executed waiver of notice of such meeting. At
such meeting, the shareholders shall elect directors and transact such other
business as may properly be brought before the meeting.
2.2 Special
Meetings. Special meetings of the shareholders, for any
purpose or purposes, unless otherwise prescribed by statute, may be called by
the President or by the Board, and shall be called by the President at the
request of the holders of not less than one tenth (10%) of all the outstanding
shares of the Corporation entitled to vote at the meeting.
2.3 Place of
Meeting. The Board shall determine the place of meeting for
all annual and special meetings of the shareholders. In the absence
of any such determination, all meetings of shareholders shall be held at the
principal office of the Corporation. Meetings of the shareholders may
also be held by means of conference telephone or similar communications
equipment by means of which all persons
participating in the meeting can hear and have technical capability to
communicate verbally with each other, and such participation shall constitute
presence in person at the meeting.
2.4 Notice of
Meeting. Written or printed notice stating the place, day, and
hour of the meeting and, in case of a special meeting, the purpose or purposes
for which the meeting is called, shall be
delivered not less than ten (10) nor more than sixty (60) days before, the date
of the meeting, either personally or by
mail, by or at the direction of the President, the Secretary, or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, addressed to the shareholder at the
shareholder’s address as it appears on the stock transfer books of the
Corporation, with first-class postage thereon prepaid. A written
waiver of notice of a meeting signed by the shareholder or shareholders entitled
to such notice, whether before or after the time stated therein, shall be
equivalent to the giving of such notice.
2.5 Quorum; Manner of
Acting. A majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If a quorum is
present, the affirmative vote of a majority of the shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the
shareholders, unless the vote of a greater number or voting by classes is
required by statute, the articles of incorporation, or these
bylaws. If fewer than a majority of the outstanding shares are
represented at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time without further notice. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
2.6 Proxies. At
all meetings of shareholders, a shareholder may vote by proxy executed in
writing by the shareholder or by the shareholder’s duly authorized
attorney-in-fact. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. No proxy shall be
valid after eleven (11) months from the date of its execution, unless otherwise
provided in the proxy.
2.7 Voting of
Shares. Each outstanding share of the Corporation’s common
stock shall be entitled to one vote upon each matter submitted to a vote at a
meeting of the shareholders.
2.8 Action by Shareholders
without a Meeting. Any action required or permitted to be
taken at any meeting of shareholders may, except as otherwise required by law or
the articles of incorporation of the Corporation, be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of record of the issued and
outstanding capital stock of the Corporation having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted, and
the writing or writings are filed with the permanent records of the
Corporation. Prompt notice of the taking of corporate action without
a meeting by less than unanimous written consent shall be given to those
shareholders who have not consented in writing.
ARTICLE
THREE: BOARD
OF DIRECTORS
3.1 General
Powers. The business and affairs of the Corporation shall be
managed by its Board.
3.2 Number and
Qualifications. Each director shall be at least eighteen (18)
years of age. A director need not be a shareholder, a citizen of the
United States or a resident of the state of Oregon. The number of
directors of the Corporation shall be determined by resolution of the Board and
shall not be less than two (2).
3.3 Election and
Tenure. The directors shall be elected at the annual meeting
of the shareholders. Their term of office shall begin immediately
after election. The terms of all directors, including a director
elected to fill a vacancy, expire at the next annual meeting of the shareholders
following their election. Despite the expiration of a director’s
term, the director shall continue to serve until his or her successor is elected
and qualifies or until there is a decrease in the number of
directors.
3.4 Vacancies. A
vacancy in the Board shall exist upon the death, resignation or removal of any
director or upon an increase in the number of directors. Any vacancy
occurring in the Board may be filled by the affirmative vote of a majority of
the remaining directors though less than a quorum of the Board remaining, or by
the sole director. A director elected to fill a vacancy shall be
elected for the unexpired term of the director’s predecessor in
office.
3.5 Removal of
Directors. All or any number of the directors may be removed
with or without cause at a meeting expressly called for
that purpose by a vote of the holders of a majority of the shares then entitled
to vote at an election of directors.
3.6 Regular
Meetings. The Board may provide by resolution the time and
place, either within or without the state of Oregon, for the holding of regular
meetings of the Board without other notice than such resolution.
3.7 Special
Meetings. Special meetings of the Board may be called by or at
the request of the Chairman of the Board or the President or a majority of the
directors. The person or persons authorized to call special meetings
of the Board may fix any place, either within or without the state of Oregon, as
the place for holding any special meeting of the Board called by
them.
3.8 Notice;
Waiver. Notice of any special meeting shall be given at least
forty-eight (48) hours previously thereto by oral notice, in person or by
telephone, or written notice delivered personally, by mail to each director at
the director’s business address or electronically. The attendance of
a director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
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 Board need be specified in the notice
or waiver of notice of such meeting. A written waiver of notice of a
meeting signed by the director or directors entitled to such notice, whether
before or after the time stated therein, shall be equivalent to the giving of
such notice.
3.9 Quorum. A
majority of the number of directors in office shall constitute a quorum for the
transaction of business at any meeting of the Board, but, if less than such
majority is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
3.10 Manner of
Acting. The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board.
3.11 Presumption of
Assent. A director of the Corporation who is present at a
meeting of the Board at which action on any corporate matter is taken shall be
presumed to have assented to the action taken, unless the director’s dissent
shall be entered in the minutes of the meeting, or unless the director shall
file a written dissent to such action with the person acting as the Secretary of
the meeting before the adjournment thereof, or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to
a director who voted in favor of such action.
3.12 Action by Directors without
a Meeting. Any action required to be taken at a meeting of the
Board or any other action which may be taken at a meeting of the directors may
be taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all the directors or all the members of the committee
entitled to vote with respect to the subject matter thereof.
3.13 Telephonic
Meetings. The Board or any committee of the Board may
participate in a regular or special meeting by means of a conference telephone
or similar equipment by means of which all persons participating in the meeting
can hear each other. All directors participating in a Board or
committee meeting by this means shall be deemed to be present in person at the
meeting.
ARTICLE
FOUR: COMMITTEES
4.1 Designation. The
Board may, by resolution adopted by a majority of the entire Board, designate
one or more committees and shall designate a chairperson for each
committee.
4.2 Number; Qualification;
Term. Each committee shall consist of one or more directors
appointed by resolution adopted by a majority of the full Board. The
number of committee members may be increased or decreased from time to time by
resolution adopted by a majority of the full Board. Each committee
member shall serve as such until the earliest of (i) the expiration of his
term as director, (ii) his resignation as a committee member or as a
director, or (iii) his removal as a committee member or as a
director.
4.3 Authority. Each
committee, to the extent expressly provided in the resolution establishing such
committee, shall have and may exercise all of the authority of the Board in the
management of the business and property of the Corporation except to the extent
expressly restricted by law, the articles of incorporation of the Corporation,
or these bylaws.
4.4 Committee
Changes. The Board shall have the power at any time to fill
vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of
Committees. The Board may designate one or more directors as
alternate members of any committee. Any such alternate member may
replace any absent or disqualified member at any meeting of the
committee. If no alternate committee members have been so appointed
to a committee or each such alternate committee member is absent or
disqualified, the member or members of such committee 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.
4.6 Regular
Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special
Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling
any special meeting shall cause notice of such special meeting, including
therein the time and place of such special meeting, to be given to each
committee member at least two (2) days before such special
meeting. Neither the business to be transacted at, nor the purpose
of, any special meeting of any committee need be specified in the notice or
waiver of notice of any special meeting.
4.8 Quorum; Majority
Vote. At meetings of any committee, a majority of the number
of members designated by the Board shall constitute a quorum for the transaction
of business. If a quorum is not present at a meeting of any
committee, a majority of the members present may adjourn the meeting from time
to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at
any meeting at which a quorum is in attendance shall be the act of a committee,
unless the act of a greater number is required by law, the articles of
incorporation of the Corporation, or these bylaws.
4.9 Minutes. Each
committee shall cause minutes of its proceedings to be prepared and shall report
the same to the Board upon the request of the Board. The minutes of
the proceedings of each committee shall be delivered to the Secretary of the
Corporation for placement in the minute books of the Corporation.
4.10 Responsibility. The
designation of any committee and the delegation of authority to it shall not
operate to relieve the Board or any director of any responsibility imposed upon
it or such director by law.
ARTICLE
FIVE: OFFICERS
5.1 Number. The
officers of the Corporation shall be a President and a Secretary, each of whom
shall be elected by the Board. One or more Vice Presidents (the
number thereof to be determined by the Board) and a Treasurer may also be
elected. Such other officers and assistant officers as may be deemed
necessary may be elected or appointed by the Board. One person may
serve as more than one officer.
5.2 Election and Term of
Office. The officers of the Corporation shall be elected
annually by the Board at their first meeting held after the annual meeting of
the shareholders. If the election of officers is not held at such
meeting, such election shall be held as soon thereafter as may be
convenient. Each officer shall hold office until the officer’s
successor shall have been duly elected and shall have qualified, until the
officer’s death, or until the officer shall resign or shall have been removed in
the manner hereinafter provided.
5.3 Removal. Any
officer or agent elected or appointed by the Board may be removed by the Board
whenever in its judgment the best interests of the Corporation would be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
5.4 Vacancies. A
vacancy in any office because of death, resignation, removal, disqualification
or otherwise, may be filled by the Board for the unexpired portion of the
term.
5.5 President. The
President shall be the principal executive officer of the Corporation and
subject to the control of the Board, shall in general supervise and control all
the business and affairs of the Corporation. The President shall
preside at all meetings of the shareholders and of the Board. The
President may sign, with the Secretary or any other proper officer of the
Corporation thereunto authorized by the Board, certificates for shares of the
Corporation, and any deeds, mortgages, bonds, contracts or other instruments
which the Board has authorized to be executed, except in cases where the signing
and execution thereof shall be expressly delegated by the Board or by these
bylaws to some other officer or agent of the Corporation or shall be required by
law to be otherwise signed or executed; and in general the President shall
perform all duties incident to the office of President and such other duties as
may be prescribed by the Board from time to time.
5.6 Vice
Presidents. If the Board shall have elected or appointed one
or more Vice Presidents, such Vice President or Vice Presidents shall have such
powers and perform such duties as may be assigned to them by the Board, the
President or these bylaws. In the absence or disability of the
President, the President’s duties and powers shall be performed and exercised by
a senior officer designated by the Board or the President.
5.7 Secretary. The
Secretary shall attend all meetings of the shareholders and of the Board, and
shall record all acts and proceedings thereof in the minute book of the
Corporation. The Secretary shall give notice in conformity with these
bylaws of all meetings of the shareholders, of the Board and any committee
thereof requiring notice. The Secretary shall perform all other
duties given him in these bylaws and other duties commonly incident to such
office and shall also perform such other duties and have such other powers as
the Board or the President may designate from time to time. If the
Board shall have elected or appointed an Assistant Secretary, such Assistant
Secretary is authorized to assume and perform the duties of the Secretary in the
absence of the Secretary, and to also perform such other duties and have such
other powers as the Board or the President shall designate from time to
time. If a Treasurer is not elected, then the Secretary shall also
have all those duties and obligations as specified in Section 5.8,
below.
5.8 Treasurer. The
Treasurer, or, if the Board shall not have elected or appointed a Treasurer, the
Secretary, shall perform all duties and acts incident to the position of
Treasurer, shall have custody and be responsible for the Corporation’s funds and
securities, shall supervise the investments of its funds, and shall deposit all
money and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board. The Treasurer shall disburse the funds of the Corporation as
may be authorized, taking proper vouchers for such disbursements, and shall
render to the Board, whenever required, an account of all the transactions of
the Treasurer and of the financial condition of the Corporation. The
Treasurer shall perform such other duties as may be assigned, and shall report
to the President.
ARTICLE
SIX: CORPORATE
INSTRUMENTS, CONTRACTS, CHECKS AND DEPOSITS
6.1 Execution of Corporate
Instruments Generally. The Board may, in its discretion,
determine the method and designate the signatory officer or officers, or other
person or persons, to execute any corporate instrument or document, and such
execution or signature shall be binding upon the Corporation.
6.2 Contracts. The
Board may authorize any officer or officers, agent or agents to enter into any
contract or execute and deliver any instrument in the name of and on behalf of
the Corporation, and such authority may be general or confined to specific
instances.
6.3 Checks, Drafts,
Etc. All checks, drafts, or other orders for the payment of
money, notes, or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of the
Corporation and in such manner as shall from time to time be determined by
resolution of the Board.
6.4 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
depositaries as the Board may select.
ARTICLE
SEVEN: CERTIFICATES
FOR SHARES AND THEIR TRANSFER
7.1 Certificates for
Shares. Certificates representing shares of the Corporation
shall be in such form as shall be determined by the Board. Such
certificates shall be signed by the President or a Vice President and by the
Secretary or an Assistant Secretary, or facsimile signatures of said officers
shall be affixed to such certificates if the certificates are countersigned by a
transfer agent, or registered by a registrar other than the Corporation itself
or an employee of the Corporation. If any officer who has signed a
share certificate, either manually or in facsimile, no longer holds office when
the certificate is issued, the certificate shall nevertheless be
valid. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the
Corporation. All certificates surrendered to the.
Corporation for transfer shall be canceled and no new certificate shall
be issued until the former certificate for a like number of shares shall have
been surrendered and canceled, except that in case of a lost, destroyed, or
mutilated certificate a new certificate may be issued therefor on such terms and
with such indemnity to the Corporation as the Board may prescribe.
7.2 Transfer of
Shares. Transfer of shares of the Corporation shall be made
only on the stock transfer books of the Corporation by the holder of record
thereof or by the shareholder’s legal representative, either of whom shall
furnish proper evidence of authority to transfer, or by the shareholder’s
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary of the Corporation. A surrender for cancellation of the
certificate for such shares shall also be made in the forgoing
manner. The person in whose name shares stand on the books of the
Corporation shall be deemed by the Corporation to be the owner thereof for all
purposes.
7.3 Lost
Certificates. In the event a certificate is represented to be
lost, stolen or destroyed, a new certificate shall be issued in place thereof
upon such proof of the loss, theft or destruction and upon the giving of such
bond or other indemnity as may be required by the
Corporation. Nothing in this Section 7.3
shall require the Corporation to issue a new certificate if the Corporation has
determined that such shares shall be uncertificated.
7.4 Record
Date. In order that the Corporation may determine the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, 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 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 seventy (70) nor less than ten (10) days before the date of
such meeting, nor more than seventy (70) days prior to any other
action. If no record date is fixed by the Board, the record date for
determining shareholders entitled to receive notice of or to vote at a meeting
of shareholders shall be the close of business on the date next preceding the
day on which such notice of such meeting 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. A determination of shareholders of record entitled to notice of
or to vote at a meeting of shareholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
ARTICLE
EIGHT: INDEMNIFICATION
AND INSURANCE
8.1 Indemnification,
Generally. The Corporation shall have the power to indemnify
to the fullest extent not prohibited by law any person who is made or threatened
to be made a party to, witness in, or otherwise involved in, any Proceeding
(including a Proceeding by or in the right of the Corporation) by reason of the
fact that the person is or was a Director, Officer, employee or agent of the
Corporation or any subsidiary, or serves or served at the request of the
Corporation as a Director, Officer, employee or agent.
8.2 Definitions. As
used in this Article:
(a) “Corporation” includes
any domestic or foreign predecessor entity of the Corporation in a merger or
other transaction in which the predecessor’s existence ceased upon consummation
of the transaction.
(b) “Director” means an
individual who is or was a director of the Corporation or an individual who,
while a director of the Corporation, is or was serving at the
Corporation’s request as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic business or nonprofit corporation,
partnership, joint venture, trust, employee benefit plan, or other
enterprise. “Director” includes, unless the context requires
otherwise, the estate or personal representative of a director. A
director is “disinterested” when the director has no direct or indirect
pecuniary interest in a transaction.
(c) “Expenses” includes
all expenses reasonably incurred to defend the proceeding, including attorney
fees, both at trial and on any appeal.
(d) “Liability” means the
obligation to pay a judgment, settlement, penalty, fine, including an excise tax
assessed with respect to an employee benefit plan, or reasonable expenses
actually incurred with respect to a proceeding.
(e) “Officer” means an
individual who is or was an officer of the Corporation or an individual who,
while an officer of the Corporation, is or was serving at the
Corporation’s request as a director, officer, partner, trustee, employee, or
agent of another foreign or domestic business or nonprofit corporation,
partnership, joint venture, trust, employee benefit plan, or other
enterprise. “Officer” includes, unless the context requires
otherwise, the estate or personal representative of an officer.
(f) “Party” .includes an
individual who was, is, or is threatened to be made. a
named defendant or respondent in a proceeding.
(g) “Proceeding” means any
threatened, pending or completed action, suit, or proceeding whether civil,
criminal, administrative, or investigative and whether formal or
informal.
8.3 No Presumption of Bad
Faith. Termination of any 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 was reasonably believed to be in or not opposed to
the best interests of the Corporation, nor, with respect to any criminal
proceeding, that such person had reasonable cause to believe that such conduct
was unlawful.
8.4 Right to
Indemnification. Any Director who was or is a party to any
Proceeding shall be indemnified by the Corporation against any Liability and
Expenses actually and reasonably incurred by such person in connection with such
Proceeding if such person acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the Corporation or at
least not opposed to its best interests, and, with respect to any criminal
proceeding, if such person had no reasonable cause to believe that such conduct
was unlawful.
Except as
otherwise provided by Section 8.5, no
indemnification shall be made in respect of any Proceeding brought by or in the
right of the Corporation as to which such person shall have been adjudged to be
liable to the Corporation, nor shall indemnification be made in connection with
any other Proceeding in which such person shall have been adjudged to have
received improper personal benefit.
8.5 Indemnification in
Proceedings by or in the Right of the Corporation. A Director
shall be indemnified by the Corporation against any Expenses actually and
reasonably incurred by the Director in connection with a Proceeding brought by
or in the right of the Corporation to procure a judgment in the Corporation’s
favor, if the Director is not adjudged liable to the Corporation, if the
Director acted in good faith, and if the Director acted in a manner reasonably
believed to be in or not opposed to the best interests of the
Corporation. If any Director suffers Liability in connection with a
Proceeding brought by or in the right of the Corporation to procure a judgment
in the Corporation’s favor and the Director was not adjudged liable to the
Corporation, the Director shall not be indemnified for any Liability in such
instance but may, upon determination by the Board pursuant to Section 8.6, be
entitled to indemnification for Expenses in connection with such
Proceeding.
8.6 Determination of Standards
of Conduct. Unless specifically ordered by a court, all
indemnification under Section 8.4 and
Section 8.5
shall be made by the Corporation only upon a determination that indemnification
is proper in the
circumstances because the Director has met the applicable standards of
conduct. Such determination shall be made:
(a) By the
Board by a majority vote of a quorum consisting of Directors not at the time
parties to such Proceeding;
(b) If such a
quorum cannot be obtained, then by a majority vote of a committee of the Board,
duly appointed and designated to act in the matter by a majority vote of the
full Board (in which designation Directors who are parties may participate),
consisting solely of two (2) or more Directors not at the time parties to such
Proceeding;
(c) In a
written opinion by legal counsel selected by the Board or a committee thereof by
vote as set forth in Paragraphs (a) or (b) of this Section 8.6, or
if the requisite quorum of the full Board cannot be obtained therefor and such
committee cannot be established, by a majority vote of the full Board (in which
selection Directors who are parties may participate); or
(d) By the
shareholders.
Authorization
of indemnification and the evaluation of reasonableness of Expenses shall be
made in the same manner as the determination that indemnification is
permissible, except that if the determination is made by legal counsel,
authorization of indemnification and evaluation as to reasonableness of Expenses
shall be made by those entitled under Paragraph (c) of this Section 8.6 to select
counsel.
8.7 Advance for
Expenses. Expenses incurred in defending a Proceeding may be
paid by the Corporation in advance of the final disposition of such Proceeding
if authorized by a disinterested Board or, if there be no quorum of
disinterested Directors, then by majority vote of the Board. The
Directors shall not authorize such payments unless they first receive
both:
(a) an
affidavit of the Director seeking advancement of Expenses that the Director has
a good faith belief that the Director met the applicable standards of conduct
which, when determined, will entitle the Director to indemnification;
and
(b) an
undertaking by or on behalf of the Director to repay such amount if it is not
ultimately determined that the Director is entitled to be indemnified by the
Corporation.
The
undertaking required by Paragraph (b) of this Section 8.7
shall be an unlimited general obligation of such person but need not be secured
and may be accepted without reference to financial ability to make the
repayment. Payments under this Section 8.7 may
be authorized in the manner specified in Section 8.6.
8.8 Indemnification of
Officers. Any and all rights to indemnification
provided herein to Directors of the Corporation shall also be provided to
Officers of the Corporation.
8.9 Indemnity
Agreements. The Corporation may enter into agreements with any
Director, Officer, employee, or agent of the Corporation providing for
indemnification to the full extent permitted by Oregon law.
8.10 Insurance. 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 who, while
a Director, Officer, employee or agent of the Corporation is or was serving at
the request of the Corporation as a Director, Officer, employee or agent of
another business or nonprofit corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan, against any Liability asserted
against and incurred by such person in any such capacity. The
Corporation may maintain such insurance whether or not the Corporation would
have the power to indemnify such person against such Liability under the other
provisions of this Article or under the OBCA as it now exists or may hereafter
be amended.
8.11 Nonexclusive
Right. The indemnification provided by this Article shall not
be deemed to be exclusive of any other right to which a person seeking
indemnification may be entitled under these bylaws, pursuant to any other
agreement or vote of the shareholders or disinterested Directors, or otherwise
(including without limitation any right to indemnification that a person may be
entitled to under the OBCA as it now exists or may hereafter be
amended). This Section 8.11
shall apply to both action taken in such person’s official capacity and to
action taken in any other capacity covered hereby. The
indemnification provided by this Article shall continue to a person who has
ceased to be a Director or Officer and shall inure to the benefit of such
person’s heirs, executors and administrators. No repeal of or
amendment to this Article shall adversely affect any right or protection of any
such person to which this Article applies and which exists at the time of such
repeal or replacement.
ARTICLE
NINE: BOOKS
AND RECORDS
9.1 Books and
Records. The Corporation shall keep correct, and complete
books and records of account and shall keep minutes of the proceedings of its
shareholders and the Board, and shall keep at its registered office or principal
place of business, or at the office of its transfer agent or registrar, a record
of its shareholders, giving the names and addresses of all shareholders and the
number and class of the shares held by each. Any books, records, and
minutes may be in written form or any other form capable of being converted into
written form within a reasonable time.
ARTICLE
TEN: MISCELLANEOUS
10.1 Severability. If
any provision of these bylaws or any application thereof shall be invalid,
unenforceable or contrary to applicable law, the remainder of these bylaws, or
the application of such provisions to persons or circumstances other than those
as to which it is held invalid, unenforceable or contrary to applicable law,
shall not be affected thereby and shall continue in full force and
effect.
10.2 Amendments. The
Board shall have power to make, alter, amend and repeal these
bylaws. These bylaws may be altered, amended or repealed by the
affirmative vote of a majority of the voting stock issued and outstanding at any
regular or special meeting of the shareholders.
10.3 Seal. The
corporate seal, if any, shall be circular in form and shall have inscribed
thereon the name of the Corporation and the state of incorporation.
10.4 Fiscal
Year. The fiscal year of the Corporation shall be the calendar
year.
The
undersigned, the Secretary of the Corporation, hereby certifies that the
foregoing bylaws were amended and restated by unanimous consent by the directors
of the Corporation as of February 16, 2010.
/s/ Daniel J.
Weber
Daniel J.
Weber, Secretary
Signature
Page to
Amended
and Restated Bylaws of
Merix
Corporation