Attached files
file | filename |
---|---|
8-K - FORM 8-K - 3COM CORP | b80491e8vk.htm |
EX-3.1 - EX-3.1 - 3COM CORP | b80491exv3w1.htm |
Exhibit 3.2
BYLAWS
OF
3COM CORPORATION
OF
3COM CORPORATION
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation will be Corporation Trust Center 1209 Orange Street,
in the City of Wilmington, New Castle County, Delaware 19801, and the name of its registered agent
at that address is The Corporation Trust Company.
The board of directors may at any time change such registered offices, and the corporation may
establish other offices at any place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders will be held at any place, within or outside the State of Delaware,
designated by the board of directors. In the absence of any such designation, stockholders
meetings will be held at the registered office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders will be held each year on a date and at a time designated
by the board of directors. At the meeting, directors will be elected and any other proper business
may be transacted. The corporation may obtain unanimous written consents from its stockholders to
elect directors in lieu of holding an annual meeting.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the board of directors, or
by the chairman of the board, or by the president, or by one or more stockholders holding shares in
the aggregate entitled to cast not less than ten percent (10%) of the votes at that meeting.
If a special meeting is called by any person or persons other than the board of directors or
the president or the chairman of the board, then the request will be in writing, specifying the
time of such meeting and the general nature of the business proposed to be transacted, and will be
delivered personally or sent by registered mail or by telegraphic or other facsimile transmission
to the chairman of the board, the president, any vice president or the secretary of the
corporation. The officer receiving the request will cause notice to be promptly given to the
stockholders entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5 of these
bylaws, that a meeting will be held at the time requested by the person or persons calling the
meeting, so long as that time is not less than thirty-five (35) nor more than sixty (60) days after
the receipt of the request. If the notice is not given within twenty (20) days after receipt of
the request, then the person or persons requesting the meeting may give the notice. Nothing
contained in this paragraph of this Section 2.3 will be construed as limiting, fixing or affecting
the time when a meeting of stockholders called by action of the board of directors may be held.
2.4 NOTICE OF STOCKHOLDERS MEETINGS
All notices of meetings with stockholders will be in writing and will be sent or otherwise
given in accordance with Section 2.5 of these bylaws not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote at such meeting. The
notice will specify the place, date, and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address as it appears on
the records of the corporation. An affidavit of the secretary or an assistant secretary or of the
transfer agent of the corporation that the notice has been given will, in the absence of fraud, be
prima facie evidence of the facts stated therein.
2.6 QUORUM
The holders of a majority of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, will constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or represented at any
meeting of the stockholders, then the stockholders entitled to vote thereat, present in person or
represented by proxy, will have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is present or represented. At such
adjourned meeting at which a quorum is present or represented, any business may be transacted that
might have been transacted at the meeting as originally noticed.
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these bylaws otherwise require,
notice need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned meeting the
corporation may transact any business that might have been transacted at the original meeting. If
the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting will be given to each
stockholder of record entitled to vote at the meeting.
2.8 VOTING
The stockholders entitled to vote at any meeting of stockholders will be determined in
accordance with the provisions of Section 2.11 of these bylaws, subject to the provisions of
applicable law (relating to voting rights of fiduciaries, pledgors and joint owners of stock and to
voting trusts and other voting agreements).
At a stockholders meeting at which directors are to be elected, or at elections held under
special circumstances, each stockholder will be entitled to one vote for each share of common stock
held by such stockholder and to the number of votes equal to the number of shares of common stock
into which their Preferred Stock is convertible on the appropriate record date. There will be no
cumulative voting.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any applicable law, or the certificate of
incorporation or these bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, will be deemed equivalent to notice. Attendance
of a person at a meeting will constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice unless so required by the
certificate of incorporation or these bylaws.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise provided in the certificate of incorporation, any action required to be taken
at any annual or special meeting of stockholders of a corporation, or any action that may be taken
at any annual or special meeting of such stockholders, may be taken without a meeting, without
prior notice, and without a vote if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock 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.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous
written consent will be given to those stockholders who have not consented in writing. If the
action which is consented to is such as would have required the filing of a certificate under any
applicable law if such action had been voted on by stockholders at a
meeting thereof, then the certificate filed under such section will state, in lieu of any
statement required by such section concerning any vote of stockholders, that written notice and
written consent have been given as provided under applicable law.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
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 entitled 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
change, conversion or exchange of stock or for the purpose of any other lawful action, the board of
directors may fix, in advance, a record date, which will 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 the board of directors does not so fix a record date:
(i) The record date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders will be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next preceding the day on
which the meeting is held.
(ii) The record date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the board of directors is necessary,
will be the day on which the first written consent is expressed.
(iii) The record date for determining stockholders for any other purpose will be at the close
of business on the day on which the board of directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders will apply to any adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
2.12 PROXIES
Each stockholder entitled to vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting may authorize another person or persons to
act for him by a written proxy, signed by the stockholder and filed with the secretary of the
corporation, but no such proxy will be voted or acted upon after three (3) years from its date,
unless the proxy provides for a longer period. A proxy will be deemed signed if the stockholders
name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the stockholder or the stockholders attorney-in-fact. The revocability of a proxy
that states on its face that it is irrevocable will be governed by applicable law.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
Upon the request of any stockholder, the officer who has charge of the stock ledger of a
corporation will 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 will 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 (10) days prior to the
meeting, either at a place within the city where the meeting is to be held, which place will be
specified in the notice of the meeting, or, if not so specified, at the place where the meeting is
to be held. The requested list will 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.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of applicable law and any limitations in the certificate of
incorporation or these bylaws relating to action required to be approved by the stockholders or by
the outstanding shares, the business and affairs of the corporation will be managed and all
corporate powers will be exercised by or under the direction of the board of directors.
3.2 NUMBER OF DIRECTORS
The number of directors shall be determined by resolution of the board. 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.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, directors will be elected at each annual
meeting of stockholders to hold office until the next annual meeting. Directors need not be
stockholders unless so required by the certificate of incorporation or these bylaws, wherein other
qualifications for directors may be prescribed. Each director, including a director elected to
fill a vacancy, will hold office until his successor is elected and qualified or until his earlier
resignation or removal.
Elections of directors need not be by written ballot.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice to the corporation. When one or more
directors so resigns and the resignation is effective at a future date, a majority of the directors
then in office, including those who have so resigned, will have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations will become
effective, and each director so chosen will hold office as provided in this section in the filling
of other vacancies.
Unless otherwise provided in the certificate of incorporation or these bylaws:
(i) Vacancies and newly created directorships resulting from any increase in the authorized
number of directors elected by all of the stockholders having the right to vote as a single class
may be filled by a majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or series thereof are entitled to
elect one or more directors by the provisions of the certificate of incorporation, vacancies and
newly created directorships of such class or classes or series may be filled by a majority of the
directors elected by such class or classes or series thereof then in office, or by a sole remaining
director so elected.
If at any time, by reason of death or resignation or other cause, the corporation should have
no directors in office, then any officer or any stockholder or an executor, administrator, trustee
or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person
or estate of a stockholder, may call a special meeting of stockholders in accordance with the
provisions of the certificate of incorporation or these bylaws, or may apply to a court for a
decree summarily ordering an election as provided by applicable law.
If, at the time of filling any vacancy or any newly created directorship, the directors then
in office constitute less than a majority of the whole board (as constituted immediately prior to
any such increase), then the court may, upon application of any stockholder or stockholders holding
at least ten (10) percent of the total number of the shares at the time outstanding having the
right to vote for such directors, summarily order an election to be held to fill any such vacancies
or newly created directorships, or to replace the directors chosen by the directors then in office
as aforesaid, which election will be governed by applicable law.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold meetings, both regular and special, either
within or outside the State of Delaware.
Unless otherwise restricted by the certificate of incorporation or these bylaws, members of
the board of directors, or any committee designated by the board of directors, may participate in a
meeting of the board of directors, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear each
other, and such participation in a meeting will constitute presence in person at the meeting.
3.6 FIRST MEETINGS
The first meeting of each newly elected board of directors will be held at such time and place
as will be fixed by the vote of the stockholders at the annual meeting and no notice of such
meeting will be necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum will be present. In the event of the failure of the stockholders to fix
the time or place of such first meeting of the newly elected board of directors, or in the event
such meeting is not held at the time and place so fixed by the stockholders, the meeting may be
held at such time and place as will be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as will be specified in a written waiver signed by
all of the directors.
3.7 REGULAR MEETINGS
Regular meetings of the board of directors may be held without notice at such time and at such
place as will from time to time be determined by the board.
3.8 SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors for any purpose or purposes may be called at any
time by the chairman of the board, the president, any vice president, the secretary or any two (2)
directors.
Notice of the time and place of special meetings will be delivered personally or by telephone
to each director or sent by first-class mail or telegram, charges prepaid, addressed to each
director at that directors address as it is shown on the records of the corporation. If the
notice is mailed, it will be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. If the notice is delivered personally or by telephone or by
telegram, it will be delivered personally or by telephone or to the telegraph company at least
forty-eight (48) hours before the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated either to the director or to a person at the office
of the director who the person giving the notice has reason to believe will promptly communicate it
to the director. The notice need not specify the purpose or the place of the meeting, if the
meeting is to be held at the principal executive office of the corporation.
3.9 QUORUM
At all meetings of the board of directors, a majority of the authorized number of directors
will constitute a quorum for the transaction of business and the act of a majority of the directors
present at any meeting at which there is a quorum will be the act of the board of directors, except
as may be otherwise specifically provided by statute or by the certificate of incorporation. If a
quorum is not present at any meeting of the board of directors, then the directors present thereat
may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum is present.
3.10 WAIVER OF NOTICE
Whenever notice is required to be given under any applicable law, or the certificate of
incorporation or these bylaws, a written waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, will be deemed equivalent to notice. Attendance
of a person at a meeting will constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting of the directors,
or members of a committee of directors, need be specified in any written waiver of notice unless so
required by the certificate of incorporation or these bylaws.
3.11 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the board of directors, then the directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of incorporation or these bylaws, any action
required or permitted to be taken at any meeting of the board of directors, or of any committee
thereof, may be taken without a meeting if all members of the board or committee, as the case may
be, consent thereto in writing and the writing or writings are filed with the minutes of
proceedings of the board or committee.
3.13 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of incorporation or these bylaws, the board of
directors will have the authority to fix the compensation of directors.
3.14 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of incorporation or by these
bylaws, any director or the entire board of directors may be removed, with or without cause, by the
holders of a majority of the shares then entitled to vote at an election of directors, whether at a
meeting of stockholders or by written consent.
No reduction of the authorized number of directors will have the effect of removing any
director prior to the expiration of such directors term of office.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may designate one (1) or more committees, each committee to consist of
one (1) or more directors of the corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified member at any
meeting of the committee. 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
such member or members constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the board of directors or in the bylaws of
the corporation, will have and may exercise all the powers and authority of the board of directors
in the management of the business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers that may require it; but no such committee will have the
power or authority to (i) approve, adopt or recommend to the stockholders, any action or matter
expressly required by applicable law to be submitted to the stockholders for approval or (ii)
adopt, amend or repeal any bylaw of the corporation.
4.2 COMMITTEE MINUTES
Each committee will keep regular minutes of its meetings and report the same to the board of
directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees will be governed by, and held and taken in accordance with,
the provisions of Article III of these bylaws, Section 3.5 (place of meetings and meetings by
telephone), Section 3.7 (regular meetings), Section 3.8 (special meetings and notice), Section 3.9
(quorum), Section 3.10 (waiver of notice), Section 3.11 (adjournment and notice of adjournment),
and Section 3.12 (action without a meeting), with such changes in the context of those bylaws as
are necessary to substitute the committee and its members for the board of directors and its
members; provided, however, that the time of regular meetings of committees may also be called by
resolution of the board of directors and that notice of special meetings of committees will also be
given to all alternate members, who will have the right to attend all meetings of the committee.
The board of directors may adopt rules for the government of any committee not inconsistent with
the provisions of these bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of the corporation will be a president, a secretary and a chief financial
officer. The corporation may also have, at the discretion of the board of directors, a chairman of
the board, one or more vice presidents, assistant secretaries and any such other officers as
may be appointed in accordance with the provisions of Section 5.3 of these bylaws. Any number of
offices may be held by the same person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be appointed in accordance with
the provisions of Section 5.3 of these bylaws, will be chosen by the board of directors, subject to
the rights, if any, of an officer under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint, or empower the president to appoint, such other officers
and agents as the business of the corporation may require, each of whom will hold office for such
period, have such authority, and perform such duties as are provided in these bylaws or as the
board of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any contract of employment, any officer may
be removed, either with or without cause, by an affirmative vote of the majority of the board of
directors at any regular or special meeting of the board or, except in the case of an officer
chosen by the board of directors, by any officer upon whom such power of removal may be conferred
by the board of directors.
Any officer may resign at any time by giving written notice to the corporation. Any
resignation will take effect at the date of the receipt of that notice or at any later time
specified in that notice; and, unless otherwise specified in that notice, the acceptance of the
resignation will not be necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation will be filled by the board of
directors.
5.6 CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, will, if present, preside at
meetings of the board of directors and exercise and perform such other powers and duties as may
from time to time be assigned to him by the board of directors or as may be prescribed by these
bylaws. If there is no president, then the chairman of the board will also be the chief executive
officer of the corporation and will have the powers and duties prescribed in Section 5.7 of these
bylaws.
5.7 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the board of directors to the
chairman of the board, if there be such an officer, the president will be the chief executive
officer of the corporation and will, subject to the control of the board of directors, have general
supervision, direction, and control of the business and the officers of the corporation. He will
preside at all meetings of the stockholders and, in the absence or nonexistence of a chairman of
the board, at all meetings of the board of directors. He will have the general powers and duties
of management usually vested in the office of president of a corporation and will have such other
powers and duties as may be prescribed by the board of directors or these bylaws.
5.8 SECRETARY
The secretary will keep or cause to be kept, at the principal executive office of the
corporation or such other place as the board of directors may direct, a book of minutes of all
meetings and actions of directors, committees of directors, and stockholders. The minutes will
show the time and place of each meeting, whether regular or special (and, if special, how
authorized and the notice given), the names of those present at directors meetings or committee
meetings, the number of shares present or represented at stockholders meetings, and the
proceedings thereof.
The secretary will keep, or cause to be kept, at the principal executive office of the
corporation or at the office of the corporations transfer agent or registrar, as determined by
resolution of the board of directors, a share register, or a duplicate share register, showing the
names of all stockholders and their addresses, the number and classes of shares held by each, the
number and date of certificates evidencing such shares, and the number and date of cancellation of
every certificate surrendered for cancellation.
The secretary will give, or cause to be given, notice of all meetings of the stockholders and
of the board of directors required to be given by law or by these bylaws. He will keep the seal of
the corporation, if one be adopted, in safe custody and will have such other powers and perform
such other duties as may be prescribed by the board of directors or by these bylaws.
5.9 CHIEF FINANCIAL OFFICER
The chief financial officer will keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the properties and business transactions of
the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, retained earnings, and shares. The books of account will at all reasonable times
be open to inspection by any director.
The chief financial officer will deposit all money and other valuables in the name and to the
credit of the corporation with such depositaries as may be designated by the board of directors.
He will disburse the funds of the corporation as may be ordered by the board of directors, will
render to the president and directors, whenever they request it, an account of all of his
transactions as chief financial officer and of the financial condition of the corporation, and
will have such other powers and perform such other duties as may be prescribed by the board of
directors or these bylaws.
5.10 VICE PRESIDENT
In the absence or disability of the president, the vice presidents, if any, in order of their
rank as fixed by the board of directors or, if not ranked, a vice president designated by the board
of directors, will perform all the duties of the president and when so acting will have all the
powers of, and be subject to all the restrictions upon, the president. The vice presidents will
have such other powers and perform such other duties as from time to time may be prescribed for
them respectively by the board of directors, these bylaws, the president or the chairman of the
board.
5.11 ASSISTANT SECRETARY
The assistant secretary, or, if there is more than one, the assistant secretaries in the order
determined by the stockholders or board of directors (or if there be no such determination, then in
the order of their election) will, in the absence of the secretary or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the secretary and will
perform such other duties and have such other powers as the board of directors or the stockholders
may from time to time prescribe.
5.12 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, all officers of the corporation will
respectively have such authority and perform such duties in the management of the business of the
corporation as may be designated from time to time by the board of directors or the stockholders.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each person who was or is made a party or is threatened to be made a party to or is involved
in any action, suit, or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a proceeding), by reason of the fact that he or she or a person of whom he or she is
the legal representative is or was a director or officer of the corporation (or any predecessor) or
is or was serving at the request of the corporation (or any predecessor) as a director, officer,
employee or agent of another corporation or of a partnership, joint venture, trust or other
enterprise (or any predecessor of any of such entities), including service with respect to employee
benefit plans maintained or sponsored by the corporation (or any predecessor), whether the basis of
such proceeding is alleged action in an official capacity as a director, officer, employee or agent
or in
any other capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits the corporation to
provide broader indemnification rights than said law permitted the corporation to provide prior to
such amendment), against all expense, liability and loss (including attorneys fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such indemnification shall continue
as to a person who has ceased to be a director, officer, employee or agent and shall inure to the
benefit or his or her heirs, executors and administrators; provided, however, that except as
provided in the third paragraph of this Bylaw, the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the board of directors. The right to
indemnification conferred in this Bylaw shall be a contract right and shall include the right to be
paid by the corporation the expenses incurred in defending any such proceeding in advance of its
final disposition, such advances to be paid by the corporation within twenty (20) days after the
receipt by the corporation of a statement or statements from the claimant requesting such advance
or advances from time to time; provided, however, that if the General Corporation Law of the State
of Delaware requires, the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon
delivery to the corporation of an undertaking by or on behalf of such director or officer to repay
all amounts so advanced if it shall ultimately be determined that such director or officer is not
entitled to be indemnified under this Bylaw or otherwise.
To obtain indemnification under this Bylaw, a claimant shall submit to the corporation a
written request, including therein or therewith such documentation and information as is reasonably
available to the claimant and is reasonably necessary to determine whether and to what extent the
claimant is entitled to indemnification. Upon written request by a claimant for indemnification
pursuant to the preceding sentence, a determination, if required by applicable law, with respect to
the claimants entitlement thereto shall be made as follows: (i) if requested by the claimant, by
Independent Counsel (as hereinafter defined), or (ii) if no request is made by the claimant for a
determination by Independent Counsel, (A) by the board of directors by a majority vote of a quorum
consisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the board of
directors consisting of Disinterested Directors is not obtainable or, even if obtainable, such
quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the
board of directors, a copy of which shall be delivered to the claimant, or (C) if a quorum of
Disinterested Directors so directs, by the stockholders of the corporation. In the event the
determination of entitlement to indemnification is to be made by Independent Counsel at the request
of the claimant, the Independent Counsel shall be selected by the board of
directors unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceeding for which indemnification is claimed a Change of
Control as defined below, in which case the Independent Counsel shall be selected by the claimant
unless the claimant shall request that such selection be made by the board of directors. If it is
so determined that the claimant is entitled to indemnification, payment to the claimant shall be
made within ten (10) days after such determination.
If a claim for the indemnification under this Bylaw is not paid in full by the corporation
within thirty (30) days after a written claim pursuant to the preceding paragraph of this Bylaw has
been received by the corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the required undertaking, if
any is required, has been tendered to the corporation) that the claimant has not met the standard
of conduct which makes it permissible under the General Corporation Law of the State of Delaware
for the corporation to indemnify the claimant for the amount claimed, but the burden of proving
such defense shall be on the corporation. Neither the failure of the corporation (including its
board of directors, Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the General Corporation
Law of the State of Delaware, nor an actual determination by the corporation (including its board
of directors, Independent Counsel or stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
If a determination shall have been made pursuant to this Bylaw that the claimant is entitled
to indemnification, the corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to the immediately preceding paragraph of this Bylaw. The corporation shall be
precluded from asserting in any judicial proceeding commenced pursuant to the third paragraph of
this Bylaw that the procedures and presumptions of this Bylaw are not valid, binding and
enforceable and shall stipulate in such proceeding that the corporation is bound by all the
provisions of this Bylaw. The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this Bylaw shall not be
exclusive or any other right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
Disinterested Directors or otherwise. No repeal or modification of this Bylaw shall in any way
diminish or adversely affect the rights of any director, officer, employee or agent of the
corporation hereunder in respect of any occurrence or matter arising prior to any such repeal or
modification.
If any provision or provisions of this Bylaw shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the
remaining provisions of this Bylaw (including, without limitation, each portion of any paragraph of
this Bylaw containing any such provision held to be invalid, illegal or unenforceable, that is not
itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (ii) to the fullest extent possible, the provisions of this Bylaw (including,
without limitation, each such portion of any paragraph of this Bylaw containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
For the purpose of this Bylaw, a Change of Control shall mean:
(1) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the 1934 Act (a Person) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the 1934 Act) of 20% or more of either (i) the then outstanding shares of common
stock of the corporation (the Outstanding Corporation Common Stock) or (ii) the combined voting
power of the then outstanding voting securities of the corporation entitled to vote generally in
the election of directors (the Outstanding Corporation Voting Securities); provided, however,
that for purposes of this part (1), the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the corporation or any acquisition from other
stockholders where (A) such acquisition was approved in advance by the board of directors of the
corporation, and (B) such acquisition would not constitute a Change of Control under part (1) of
this definition, (ii) any acquisition by the corporation, (iii) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the corporation or any corporation
controlled by the corporation, or (iv) any acquisition by any corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of part (1) of this definition; or
(2) individuals who, as of the date hereof, constitute the board of directors (the Incumbent
Board) cease for any reason to constitute at least a majority of the board of directors; provided,
however, that any individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or other actual or threatened solicitation of proxies of
consents by or on behalf of a Person other than the board of directors; or
(3) consummation of a reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the corporation (a Business Combination), in each case,
unless, following such Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding Corporation Common Stock
and Outstanding Corporation Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a corporation which as a
result of such transaction owns the corporation or all or substantially all of the corporations
assets either directly or through one or more subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Business
Combination of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (ii) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of the corporation or such
corporation resulting from such Business Combination) beneficially owns, directly or indirectly,
20% or more of, respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such ownership existed prior to the
Business Combination, and (iii) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the action of the board of directors,
providing for such Business Combination; or
(4) | approval by the stockholders of a complete liquidation or dissolution of the corporation. |
For purposes of this Bylaw:
Disinterested Director shall mean a director of the corporation who is not and was
not a party to the matter in respect of which indemnification is sought by the claimant.
Independent Counsel shall mean a law firm, a member of a law firm, or an independent
practitioner, that is experienced in matters of corporation law and shall include any person who,
under the applicable standards of professional conduct then prevailing, would not have a conflict
of interest in representing either the corporation or the claimant in an action to determine the
claimants rights under this Bylaw.
Any notice, request or other communication required or permitted to be given to the
corporation under this Bylaw shall be in writing and either delivered in person or sent by
telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail,
postage or charges prepaid, return copy requested, to the secretary of the corporation and shall be
effective only upon receipt by the secretary.
6.3 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the maximum extent and in the manner permitted by the
General Corporation Law of Delaware, to indemnify each of its employees and agents (other than
directors and officers) against expenses (including attorneys fees), judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the corporation. For purposes of this
Section 6.2, an employee or agent of the corporation (other than a director or officer)
includes any person (i) who is or was an employee or agent of the corporation, (ii) who is or was
serving at the request of the corporation as an employee or agent of another corporation,
partnership, joint
venture, trust or other enterprise, or (iii) who was an employee or agent of a corporation
which was a predecessor corporation of the corporation or of another enterprise at the request of
such predecessor corporation.
6.4 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 is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability under the
provisions of the General Corporation Law of Delaware.
6.5 EXPENSES
The corporation shall advance to any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was a
director or officer of the corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or other enterprise,
prior to the final disposition of the proceeding, promptly following request therefor, all expenses
incurred by any director or officer in connection with such proceeding, upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be determined
ultimately that such person is not entitled to be indemnified under this Bylaw or otherwise;
provided, however, that the corporation shall not be required to advance expenses to any director
or officer in connection with any proceeding (or part thereof) initiated by such person unless the
proceeding was authorized in advance by the board of directors of the corporation. Notwithstanding
the foregoing, unless otherwise determined pursuant to Section 6.5, no advance shall be made by the
corporation to an officer of the corporation (except by reason of the fact that such officer is or
was a director of the corporation in which event this paragraph shall not apply) in any action,
suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is
reasonably and promptly made (i) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to the proceeding, or (ii) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, that the facts known to the decision-making party at the time
such determination is made demonstrate clearly and convincingly that such person acted in bad faith
or in a manner that such person did not believe to be in or not opposed to the best interests of
the corporation.
6.6 NON-EXCLUSIVITY OF RIGHTS
The rights conferred on any person by this Bylaw shall not be exclusive of any other right
which such person may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, 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
office. The corporation is specifically authorized to enter into individual contracts with any or
all of its directors, officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the General Corporation Law of Delaware.
6.7 SURVIVAL OF RIGHTS
The rights conferred on any person by this Bylaw shall continue as to a person who has ceased
to be a director, officer, employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
6.8 AMENDMENTS.
Any repeal or modification of this Bylaw shall only be prospective and shall not affect the
rights under this Bylaw in effect at the time of the alleged occurrence of any action or omission
to act that is the cause of any proceeding against any agent of the corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation will, either at its principal executive office or at such place or places as
designated by the board of directors, keep a record of its stockholders listing their names and
addresses and the number and class of shares held by each stockholder, a copy of these bylaws as
amended to date, accounting books, and other records.
Any stockholder of record, in person or by attorney or other agent, will, upon written demand
under oath stating the purpose thereof, have the right during the usual hours for business to
inspect for any proper purpose the corporations stock ledger, a list of its stockholders, and its
other books and records and to make copies or extracts therefrom. A proper purpose will mean a
purpose reasonably related to such persons interest as a stockholder. In every instance where an
attorney or other agent is the person who seeks the right to inspection, the demand under oath will
be accompanied by a power of attorney or such other writing that authorizes the attorney or other
agent to so act on behalf of the stockholder. The demand under oath will be directed to the
corporation at its registered office or at its principal place of business.
7.2 INSPECTION BY DIRECTORS
Any director will have the right to examine the corporations stock ledger, a list of its
stockholders, and its other books and records for a purpose reasonably related to his position as a
director. The court is hereby vested with the exclusive jurisdiction to determine whether a
director is entitled to the inspection sought. The court may summarily order the corporation to
permit the director to inspect any and all books and records, the stock ledger, and the stock list
and to make copies or extracts therefrom. The court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such other and further relief
as the court may deem just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors will present at each annual meeting, and at any special meeting of the
stockholders when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
Any director, the president, any vice president, the chief financial officer, the secretary or
assistant secretary of this corporation, or any other person authorized by the board of directors
or the president or a vice president, is authorized to vote, represent, and exercise on behalf of
this corporation all rights incident to any and all shares of any other corporation or corporations
standing in the name of this corporation. The authority granted herein may be exercised either by
such person directly or by any other person authorized to do so by proxy or power of attorney duly
executed by such person having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS
From time to time, the board of directors will determine by resolution which person or persons
may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences
of indebtedness that are issued in the name of or payable to the corporation, and only the persons
so authorized will sign or endorse those instruments. Absent any such determination, each officer
of the corporation shall be so authorized.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute any instrument in
the name of and on behalf of the corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors or within the agency power
of an officer, no officer, agent or employee will 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 for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation will be represented by certificates unless the board of directors
adopts a resolution or resolutions providing that some or all of, or any or all classes or series
of its stock shall be issued as uncertificated shares. Every holder of stock represented by
certificates will be entitled to have, upon request a certificate signed by, or in the name of the
corporation by the chairman of the board of directors, or the president or vice-president, and by
the chief financial officer or an assistant chief financial officer, or the secretary or an
assistant secretary of such corporation representing the number of shares registered in certificate
form. Any or all of the signatures on the certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue. Provision of a share certificate to any
stockholder upon the request of such stockholder shall not nullify a resolution allowing
uncertificated shares to other investors.
The corporation may issue the whole or any part of its shares as partly paid and subject to
call for the remainder of the consideration to be paid therefor. Upon the face or back of each
stock certificate issued to represent any such partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon will be stated. Upon the declaration
of any dividend on fully paid shares, the corporation will declare a dividend upon partly paid
shares of the same class, but only upon the basis of the percentage of the consideration actually
paid thereon.
8.4 LOST CERTIFICATES
Except as provided in this Section 8.4, no new certificates for shares will be issued to
replace a previously issued certificate unless the latter is surrendered to the corporation and
canceled at the same time. The corporation may issue a new certificate of stock or uncertificated
shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the corporation may require the owner of the lost, stolen or destroyed
certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate or uncertificated shares.
8.5 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of construction and
definitions under the laws of the state of incorporation of the corporation will govern the
construction of these bylaws. Without limiting the generality of this provision, the singular
number includes the plural, the plural number includes the singular, and the term person includes
both a corporation and a natural person.
8.6 DIVIDENDS
The directors of the corporation, subject to any restrictions contained in the certificate of
incorporation, may declare and pay dividends upon the shares of its capital stock pursuant to
applicable law. Dividends may be paid in cash, in property, or in shares of the corporations
capital stock.
The directors of the corporation may set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper purpose and may abolish any such
reserve. Such purposes will include but not be limited to equalizing dividends, repairing or
maintaining any property of the corporation, and meeting contingencies.
8.7 FISCAL YEAR
The fiscal year of the corporation will be fixed by resolution of the board of directors and
may be changed by the board of directors.
8.8 SEAL
This corporation may have a corporate seal, which may be adopted or altered at the pleasure of
the board of directors, and may use the same by causing it or a facsimile thereof, to be impressed
or affixed or in any other manner reproduced.
8.9 TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the corporation of a certificate
for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority
to transfer, it will be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate, and record the transaction in its books.
8.10 STOCK TRANSFER AGREEMENTS
The corporation will have power to enter into and perform any agreement with any number of
stockholders of any one or more classes of stock of the corporation to restrict the transfer of
shares of stock of the corporation of any one or more classes owned by such stockholders in any
manner not prohibited by applicable law.
8.11 REGISTERED STOCKHOLDERS
The corporation will be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends and to vote as such owner, will be entitled
to hold liable for calls and assessments the person registered on its books as the owner of shares,
and will not be bound to recognize any equitable or other claim to or interest in such share or
shares on the part of another person, whether or not it will have express or other notice
thereof, except as otherwise provided by applicable law.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted, amended or repealed by the
stockholders entitled to vote; provided, however, that the corporation may, in its certificate of
incorporation, confer the power to adopt, amend or repeal bylaws upon the directors. The fact that
such power has been so conferred upon the directors will not divest the stockholders of the power,
nor limit their power to adopt, amend or repeal bylaws.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the board of directors of the corporation
that the corporation should be dissolved, the board, after the adoption of a resolution to that
effect by a majority of the whole board at any meeting called for that purpose, will cause notice
to be mailed to each stockholder entitled to vote thereon of the adoption of the resolution and of
a meeting of stockholders to take action upon the resolution.
At the meeting a vote will be taken for and against the proposed dissolution. If a majority
of the outstanding stock of the corporation entitled to vote thereon votes for the proposed
dissolution, then a certificate stating that the dissolution has been authorized in accordance with
applicable law will be executed, filed and will then become effective. Upon such certificates
becoming effective, the corporation will be dissolved.
Whenever all the stockholders entitled to vote on a dissolution consent in writing, either in
person or by duly authorized attorney, to a dissolution, no meeting of directors or stockholders
will be necessary.