Attached files
file | filename |
---|---|
S-1 - FORM S-1 - WINTEGRA INC | v181667_s1.htm |
EX-3.1 - EXHIBIT 3.1 - WINTEGRA INC | v181667_ex3-1.htm |
EX-4.2 - EXHIBIT 4.2 - WINTEGRA INC | v181667_ex4-2.htm |
EX-3.1.1 - EXHIBIT 3.1.1 - WINTEGRA INC | v181667_ex3-11.htm |
EX-23.3 - EXHIBIT 23.3 - WINTEGRA INC | v181667_ex23-3.htm |
EX-23.1 - EXHIBIT 23.1 - WINTEGRA INC | v181667_ex23-1.htm |
EX-10.13 - EXHIBIT 10.13 - WINTEGRA INC | v181667_ex10-13.htm |
EX-10.13.1 - EXHIBIT 10.13.1 - WINTEGRA INC | v181667_ex10-131.htm |
AMENDED
AND RESTATED BYLAWS
OF
WINTEGRA,
INC.
(amended
and restated
by the
Board of Directors on December 12, 2006
by the
stockholders on February 28, 2007)
TABLE
OF CONTENTS
Page
ARTICLE
I — CORPORATE OFFICES
|
1
|
||
1.1
|
REGISTERED
OFFICE
|
1
|
|
1.2
|
OTHER
OFFICES
|
1
|
|
ARTICLE
II — MEETINGS OF STOCKHOLDERS
|
1
|
||
2.1
|
PLACE
OF MEETINGS
|
1
|
|
2.2
|
ANNUAL
MEETING
|
1
|
|
2.3
|
SPECIAL
MEETING
|
1
|
|
2.4
|
NOTICE
OF STOCKHOLDERS’ MEETINGS
|
2
|
|
2.5
|
MANNER
OF GIVING NOTICE; AFFIDAVIT OF NOTICE
|
2
|
|
2.6
|
QUORUM
|
3
|
|
2.7
|
ADJOURNED
MEETING; NOTICE
|
3
|
|
2.8
|
ADMINISTRATION
OF THE MEETING
|
3
|
|
2.9
|
VOTING
|
4
|
|
2.10
|
STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
|
4
|
|
2.11
|
RECORD
DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
|
5
|
|
2.12
|
PROXIES
|
5
|
|
2.13
|
LIST
OF STOCKHOLDERS ENTITLED TO VOTE
|
6
|
|
2.14
|
ADVANCE
NOTICE OF STOCKHOLDER BUSINESS.
|
6
|
|
2.15
|
ADVANCE
NOTICE OF DIRECTOR NOMINATIONS.
|
7
|
|
ARTICLE
III — DIRECTORS
|
8
|
||
3.1
|
POWERS
|
8
|
|
3.2
|
NUMBER
OF DIRECTORS
|
8
|
|
3.3
|
ELECTION,
QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
|
9
|
|
3.4
|
RESIGNATION
AND VACANCIES
|
9
|
|
3.5
|
PLACE
OF MEETINGS; MEETINGS BY TELEPHONE
|
9
|
|
3.6
|
REGULAR
MEETINGS
|
9
|
|
3.7
|
SPECIAL
MEETINGS; NOTICE
|
10
|
|
3.8
|
QUORUM
|
10
|
|
3.9
|
WAIVER
OF NOTICE
|
11
|
|
3.10
|
BOARD
ACTION BY WRITTEN CONSENT WITHOUT A MEETING
|
11
|
|
3.11
|
ADJOURNED
MEETING; NOTICE
|
11
|
|
3.12
|
FEES
AND COMPENSATION OF DIRECTORS
|
11
|
|
3.13
|
REMOVAL
OF DIRECTORS
|
11
|
|
ARTICLE
IV — COMMITTEES
|
12
|
||
4.1
|
COMMITTEES
OF DIRECTORS
|
12
|
|
4.2
|
COMMITTEE
MINUTES
|
12
|
|
4.3
|
MEETINGS
AND ACTION OF COMMITTEES
|
12
|
|
ARTICLE
V — OFFICERS
|
13
|
||
5.1
|
OFFICERS
|
13
|
-i-
TABLE
OF CONTENTS
(continued)
Page
5.2
|
APPOINTMENT
OF OFFICERS
|
13
|
|
5.3
|
SUBORDINATE
OFFICERS
|
13
|
|
5.4
|
REMOVAL
AND RESIGNATION OF OFFICERS
|
13
|
|
5.5
|
VACANCIES
IN OFFICES
|
14
|
|
5.6
|
REPRESENTATION
OF SHARES OF OTHER CORPORATIONS
|
14
|
|
5.7
|
AUTHORITY
AND DUTIES OF OFFICERS
|
14
|
|
ARTICLE
VI — RECORDS AND REPORTS
|
14
|
||
6.1
|
MAINTENANCE
AND INSPECTION OF RECORDS
|
14
|
|
6.2
|
INSPECTION
BY DIRECTORS
|
15
|
|
ARTICLE
VII — GENERAL MATTERS
|
15
|
||
7.1
|
CHECKS;
DRAFTS; EVIDENCES OF INDEBTEDNESS
|
15
|
|
7.2
|
EXECUTION
OF CORPORATE CONTRACTS AND INSTRUMENTS
|
15
|
|
7.3
|
STOCK
CERTIFICATES; PARTLY PAID SHARES
|
15
|
|
7.4
|
SPECIAL
DESIGNATION ON CERTIFICATES
|
16
|
|
7.5
|
LOST
CERTIFICATES
|
16
|
|
7.6
|
DIVIDENDS
|
16
|
|
7.7
|
FISCAL
YEAR
|
16
|
|
7.8
|
SEAL
|
17
|
|
7.9
|
TRANSFER
OF STOCK
|
17
|
|
7.10
|
STOCK
TRANSFER AGREEMENTS
|
17
|
|
7.11
|
REGISTERED
STOCKHOLDERS
|
17
|
|
7.12
|
WAIVER
OF NOTICE
|
17
|
|
ARTICLE
VIII — NOTICE BY ELECTRONIC TRANSMISSION
|
18
|
||
8.1
|
NOTICE
BY ELECTRONIC TRANSMISSION
|
18
|
|
8.2
|
DEFINITION
OF ELECTRONIC TRANSMISSION
|
18
|
|
8.3
|
INAPPLICABILITY
|
19
|
|
ARTICLE
IX — INDEMNIFICATION OF DIRECTORS AND OFFICERS
|
19
|
||
9.1
|
POWER
TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN
THE RIGHT OF THE CORPORATION
|
19
|
|
9.2
|
POWER
TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION
|
19
|
|
9.3
|
AUTHORIZATION
OF INDEMNIFICATION
|
20
|
|
9.4
|
GOOD
FAITH DEFINED
|
20
|
|
9.5
|
INDEMNIFICATION
BY A COURT
|
21
|
|
9.6
|
EXPENSES
PAYABLE IN ADVANCE
|
21
|
|
9.7
|
NONEXCLUSIVITY
OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
|
21
|
|
9.8
|
INSURANCE
|
22
|
|
9.9
|
CERTAIN
DEFINITIONS
|
22
|
-ii-
TABLE
OF CONTENTS
(continued)
Page
9.10
|
SURVIVAL
OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
|
22
|
|
9.11
|
LIMITATION
ON INDEMNIFICATION.
|
22
|
|
9.12
|
INDEMNIFICATION
OF EMPLOYEES AND AGENTS.
|
23
|
|
9.13
|
EFFECT
OF AMENDMENT OR REPEAL.
|
23
|
|
ARTICLE
X — MISCELLANEOUS
|
23
|
||
10.1
|
PROVISIONS
OF CERTIFICATE GOVERN.
|
23
|
|
10.2
|
CONSTRUCTION;
DEFINITIONS.
|
23
|
|
10.3
|
SEVERABILITY.
|
23
|
|
10.4
|
AMENDMENT.
|
23
|
SCHEDULE
I – INVESTOR GROUPS
-iii-
AMENDED
AND RESTATED BYLAWS
OF
WINTEGRA,
INC.
ARTICLE
I — CORPORATE OFFICES
|
1.1
|
REGISTERED
OFFICE.
|
The
registered office of Wintegra, Inc. shall be fixed in the corporation’s
certificate of incorporation, as the same may be amended and/or restated from
time to time (as so amended and/or restated, the “Certificate”).
|
1.2
|
OTHER
OFFICES.
|
The
corporation’s Board of Directors (the “Board”) may at any
time 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 shall be held at any place within or outside the State of
Delaware as designated by the Board. The Board may, in its sole
discretion, determine that a meeting of stockholders shall not be held at any
place, but may instead be held solely by means of remote communication as
authorized by Section 211(a)(2) of the Delaware General Corporation Law
(the “DGCL”). In
the absence of any such designation or determination, stockholders’ meetings
shall be held at the corporation’s principal executive office.
|
2.2
|
ANNUAL
MEETING.
|
The
annual meeting of stockholders shall be held each year on a date and at a time
designated by the Board. At the annual meeting, directors shall be
elected and any other proper business may be transacted.
|
2.3
|
SPECIAL
MEETING.
|
Unless
otherwise required by law or the Certificate, special meetings of the
stockholders may be called at any time, for any purpose or purposes, only by
(a) the Board, (b) the Chairperson of the Board, (c) the chief
executive officer or (d) the president of the corporation.
No
business may be transacted at such special meeting other than the business
specified in the notice to stockholders of such meeting.
|
2.4
|
NOTICE
OF STOCKHOLDERS’ MEETINGS.
|
All
notices of meetings of stockholders shall be sent or otherwise given in
accordance with either Section 2.5 or
Section 8.1 of these
bylaws not less than ten (10) nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting, except as
otherwise required by applicable law. The notice shall specify the
place, if any, date and hour of the meeting, the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Any previously scheduled
meeting of stockholders may be postponed, and, unless the Certificate provides
otherwise, any special meeting of the stockholders may be cancelled by
resolution duly adopted by a majority of the Board members then in office upon
public notice given prior to the date previously scheduled for such meeting of
stockholders.
Whenever
notice is required to be given, under the DGCL, the Certificate or these bylaws,
to any person with whom communication is unlawful, the giving of such notice to
such person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is unlawful shall have
the same force and effect as if such notice had been duly given. In
the event that the action taken by the corporation is such as to require the
filing of a certificate with the Secretary of State of Delaware, the certificate
shall state, if such is the fact and if notice is required, that notice was
given to all persons entitled to receive notice except such persons with whom
communication is unlawful.
Whenever
notice is required to be given, under any provision of the DGCL, the Certificate
or these bylaws, to any stockholder to whom (A) notice of two (2)
consecutive annual meetings, or (B) all, and at least two (2), payments (if
sent by first-class mail) of dividends or interest on securities during a 12
month period, have been mailed addressed to such person at such person’s address
as shown on the records of the corporation and have been returned undeliverable,
the giving of such notice to such person shall not be required. Any
action or meeting which shall be taken or held without notice to such person
shall have the same force and effect as if such notice had been duly
given. If any such person shall deliver to the corporation a written
notice setting forth such person’s then current address, the requirement that
notice be given to such person shall be reinstated. In the event that
the action taken by the corporation is such as to require the filing of a
certificate with the Secretary of State of Delaware, the certificate need not
state that notice was not given to persons to whom notice was not required to be
given pursuant to Section 230(b) of the DGCL.
The
exception in subsection (A) of the above paragraph to the requirement that
notice be given shall not be applicable to any notice returned as undeliverable
if the notice was given by electronic transmission.
|
2.5
|
MANNER
OF GIVING NOTICE; AFFIDAVIT OF
NOTICE.
|
Notice of
any meeting of stockholders shall be given:
(a) if
mailed, when deposited in the United States mail, postage prepaid, directed to
the stockholder at his or her address as it appears on the corporation’s
records;
-2-
(b) if
electronically transmitted, as provided in Section 8.1 of these
bylaws; or
(c) otherwise,
when delivered.
An
affidavit of the secretary or an assistant secretary of the corporation or of
the transfer agent or any other agent of the corporation that the notice has
been given shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
Notice
may be waived in accordance with Section 7.12 of these
bylaws.
|
2.6
|
QUORUM.
|
Unless
otherwise provided in the Certificate or required by law, stockholders
representing a majority of the voting power of the issued and outstanding
capital stock of the corporation, present in person or represented by proxy,
shall constitute a quorum for the transaction of business at all meetings of the
stockholders. If such quorum is not present or represented at any
meeting of the stockholders, then the chairperson of the meeting, or the
stockholders representing a majority of the voting power of the capital stock at
the meeting, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time 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. The stockholders present at a duly called
meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum unless the number of stockholders who withdrew does not permit
action to be taken by the stockholders in accordance with DGCL.
|
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, place if
any thereof, and the means of remote communications if any by which stockholders
and proxy holders may be deemed to be present in person and vote at such
adjourned meeting are announced at the meeting at which the adjournment is
taken. At the continuation of 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 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting in accordance with the provisions of Section 2.4 and
Section 2.5 of these bylaws.
|
2.8
|
ADMINISTRATION
OF THE MEETING.
|
Meetings
of stockholders shall be presided over by the chief executive officer of the
corporation. If the chief executive officer will not be present at a
meeting of stockholders, such meeting shall be presided over by such chairperson
as the Board shall appoint, or, in the event that the Board shall fail to make
such appointment, any officer of the corporation elected by the
Board. The secretary of the meeting shall be the secretary of the
corporation, or, in the absence of the secretary of the corporation, such person
as the chairperson of the meeting appoints.
-3-
The Board
shall, in advance of any meeting of stockholders, appoint one (1) or more
inspector(s), who may include individual(s) who serve the corporation in other
capacities, including without limitation as officers, employees or agents, to
act at the meeting of stockholders and make a written report
thereof. The Board may designate one (1) or more persons as alternate
inspector(s) to replace any inspector, who fails to act. If no inspector or
alternate has been appointed or is able to act at a meeting of stockholders, the
chairperson of the meeting shall appoint one (1) or more inspector(s) to act at
the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath to faithfully execute the duties of inspector with
strict impartiality and according to the best of his or her
ability. The inspector(s) or alternate(s) shall have the duties
prescribed pursuant to Section 231 of the DGCL or other applicable
law.
The Board
shall be entitled to make such rules or regulations for the conduct of meetings
of stockholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations, if any, the
chairperson of the meeting shall have the right and authority to prescribe such
rules, regulations and procedures and to do all acts as, in the judgment of such
chairperson, are necessary, appropriate or convenient for the proper conduct of
the meeting, including without limitation establishing an agenda of business of
the meeting, rules or regulations to maintain order, restrictions on entry to
the meeting after the time fixed for commencement thereof and the fixing of the
date and time of the opening and closing of the polls for each matter upon which
the stockholders will vote at a meeting (and shall announce such at the
meeting).
|
2.9
|
VOTING.
|
The
stockholders entitled to vote at any meeting of stockholders shall be determined
in accordance with the provisions of Section 2.11 of these
bylaws, subject to Section 217 (relating to voting rights of fiduciaries,
pledgors and joint owners of stock) and Section 218 (relating to voting
trusts and other voting agreements) of the DGCL.
Except as
otherwise provided in the provisions of Section 213 of the DGCL (relating
to the fixing of a date for determination of stockholders of record), each
stockholder shall be entitled to that number of votes for each share of capital
stock held by such stockholder as set forth in the Certificate.
In all
matters, other than the election of directors and except as otherwise required
by law, the Certificate or these bylaws, the affirmative vote of a majority of
the voting power of the shares present or represented by proxy at the meeting
and entitled to vote on the subject matter shall be the act of the
stockholders. Directors shall be elected by a plurality of the voting
power of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors.
The
stockholders of the corporation shall not have the right to cumulate their votes
for the election of directors of the corporation.
|
2.10
|
STOCKHOLDER
ACTION BY WRITTEN CONSENT WITHOUT A
MEETING.
|
Any
action which may be taken at any annual or special meeting of stockholders may
be taken without a meeting and without prior notice, if a consent in writing,
setting forth the actions so taken, is signed by the holders of at least a
majority of outstanding shares (which shall include at least one of the
Investors Groups listed in Schedule I attached to these Bylaws). All such
consents shall be filed with the secretary of the Corporation and shall be
maintained in the corporate records. Prompt notice of the taking of a
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
-4-
|
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
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 record date shall not precede the date
on which the resolution fixing the record date is adopted and which shall not be
more than 60 nor less than ten (10) days before the date of such meeting, nor
more than 60 days prior to any other such action.
If the
Board does not fix a record date in accordance with these bylaws and applicable
law:
(a) The
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held.
(b) The
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board is necessary,
shall be the first day on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the
corporation.
(c) The
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board adopts the resolution relating
thereto.
A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned
meeting.
|
2.12
|
PROXIES.
|
Each
stockholder entitled to vote at a meeting of stockholders may authorize another
person or persons to act for such stockholder by proxy authorized by an
instrument in writing or by a transmission permitted by law and filed with the
secretary of the corporation, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. A stockholder may also authorize another person or persons to
act for him, her or it as proxy in the manner(s) provided under Section 212(c)
of the DGCL or as otherwise provided under Delaware law. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Section 212 of the DGCL.
-5-
|
2.13
|
LIST
OF STOCKHOLDERS ENTITLED TO VOTE.
|
The
officer who has charge of the stock ledger of the corporation shall prepare and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. The corporation
shall not be required to include electronic mail addresses or other electronic
contact information on such list. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting for a
period of at least ten (10) days prior to the meeting: (a) on a
reasonably accessible electronic network, provided that the information required
to gain access to such list is provided with the notice of the meeting, or
(b) during ordinary business hours, at the corporation’s principal place of
business.
In the
event that the corporation determines to make the list available on an
electronic network, the corporation may take reasonable steps to ensure that
such information is available only to stockholders of the
corporation. If the meeting is to be held at a place, then the list
shall 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. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting. Such list shall
presumptively determine the identity of the stockholders entitled to vote at the
meeting and the number of shares held by each of them.
|
2.14
|
ADVANCE
NOTICE OF STOCKHOLDER BUSINESS.
|
Only such
business shall be conducted as shall have been properly brought before a meeting
of the stockholders of the corporation. To be properly brought before
an annual meeting, business must be (a) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board,
(b) otherwise properly brought before the meeting by or at the direction of
the Board, or (c) a proper matter for stockholder action under the DGCL
that has been properly brought before the meeting by a stockholder (i) who
is a stockholder of record on the date of the giving of the notice provided for
in this Section 2.14 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies
with the notice procedures set forth in this Section 2.14. For
such business to be considered properly brought before the meeting by a
stockholder such stockholder must, in addition to any other applicable
requirements, have given timely notice in proper form of such stockholder’s
intent to bring such business before such meeting. To be timely, such
stockholder’s notice must be delivered to or mailed and received by the
secretary of the corporation at the principal executive offices of the
corporation not later than the close of business on the 90th day,
nor earlier than the close of business on the 120th day,
prior to the anniversary date of the immediately preceding annual meeting;
provided, however, that in the event that no annual meeting was held in the
previous year or the annual meeting is called for a date that is not within
thirty (30) days before or after such anniversary date, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth (10th) day
following the day on which such notice of the date of the meeting was mailed or
public disclosure of the date of the meeting was made, whichever occurs
first.
-6-
To be in
proper form, a stockholder’s notice to the secretary shall be in writing and
shall set forth:
(a) the
name and record address of the stockholder who intends to propose the business
and the class or series and number of shares of capital stock of the corporation
which are owned beneficially or of record by such stockholder;
(b) a
representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to introduce the business specified in the
notice;
(c) a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual
meeting;
(d) any
material interest of the stockholder in such business; and
(e) any
other information that is required to be provided by the stockholder pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
Notwithstanding
the foregoing, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholder’s meeting,
stockholders must provide notice as required by, and otherwise comply with the
requirements of, the Exchange Act and the regulations promulgated
thereunder.
No
business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures set
forth in this Section 2.14. The chairperson of the meeting may refuse to
acknowledge the proposal of any business not made in compliance with the
foregoing procedure.
|
2.15
|
ADVANCE
NOTICE OF DIRECTOR NOMINATIONS.
|
Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the corporation, except as may be
otherwise provided in the Certificate with respect to the right of holders of
Preferred Stock of the corporation to nominate and elect a specified number of
directors, if any. To be properly brought before an annual meeting of
stockholders, or any special meeting of stockholders called for the purpose of
electing directors, nominations for the election of director must be
(a) specified in the notice of meeting (or any supplement thereto),
(b) made by or at the direction of the Board (or any duly authorized
committee thereof) or (c) made by any stockholder of the corporation
(i) who is a stockholder of record on the date of the giving of the notice
provided for in this Section 2.15 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this
Section 2.15.
In
addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the secretary of the corporation. To be timely, a
stockholder’s notice to the secretary must be delivered to or mailed and
received at the principal executive offices of the corporation, in the case of
an annual meeting, in accordance with the provisions set forth in
Section 2.14 of these bylaws, and, in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever first occurs.
-7-
To be in
proper written form, a stockholder’s notice to the secretary must set
forth:
(a) as
to each person whom the stockholder proposes to nominate for election as a
director (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person,
(iii) the class or series and number of shares of capital stock of the
corporation which are owned beneficially or of record by the person, (iv) a
description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nominations are to be made by the stockholder, and
(v) any other information relating to such person that is required to be
disclosed in solicitations of proxies for elections of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the Exchange
Act (including without limitation such person’s written consent to being named
in the proxy statement, if any, as a nominee and to serving as a director if
elected); and
(b) as
to such stockholder giving notice, the information required to be provided
pursuant to Section 2.14 of these bylaws.
Subject
to the rights of any holders of Preferred Stock of the corporation, if any, no
person shall be eligible for election as a director of the corporation unless
nominated in accordance with the procedures set forth in this
Section 2.15. If the chairperson of the meeting properly
determines that a nomination was not made in accordance with the foregoing
procedures, the chairperson shall declare to the meeting that the nomination was
defective and such defective nomination shall be disregarded.
ARTICLE
III — DIRECTORS
|
3.1
|
POWERS.
|
Subject
to the provisions of the DGCL and any limitations in the Certificate, the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board.
|
3.2
|
NUMBER
OF DIRECTORS.
|
Subject
to the rights of the holders of any series of Preferred Stock to elect directors
under specified circumstances, if any, the authorized number of directors shall
be determined from time to time by resolution of the Board, provided the Board
shall consist of at least one member. No reduction of the
authorized number of directors shall have the effect of removing any director
before that director’s term of office expires.
-8-
|
3.3
|
ELECTION,
QUALIFICATION AND TERM OF OFFICE OF
DIRECTORS.
|
Except as
provided in Section 0 and
Section 3.13 of these bylaws, directors shall 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 or these bylaws. The Certificate or these bylaws may
prescribe other qualifications for directors. Each director,
including a director elected to fill a vacancy, shall hold office until such
director’s successor is elected and qualified or until such director’s earlier
death, resignation or removal.
Except as
provided in the Certificate or Section 3.4 of these Bylaws, directors shall
be classified, with respect to the time for which they severally hold office,
into three (3) classes, as nearly equal in number as possible, one (1) class to
be originally elected for a term expiring at the annual meeting of stockholders
to be held after the end of fiscal year 2006, another class to be originally
elected for a term expiring at the annual meeting of stockholders to be held
after the end of fiscal year 2007, and another class to be originally elected
for a term expiring at the annual meeting of stockholders to be held after the
end of fiscal year 2008, with each class to hold office until its successor is
duly elected and qualified. At each succeeding annual meeting of
stockholders, commencing with the first annual meeting (a) directors elected to
succeed those directors whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
their election, with each director to hold office until his or her successor
shall have been duly elected and qualified, and (b) if authorized by a
resolution of the Board, directors may be elected to fill any vacancy on the
Board, regardless of how such vacancy shall have been created (as set forth in
Section 3.4 below).
|
3.4
|
RESIGNATION
AND VACANCIES.
|
Any
director may resign at any time upon written notice or by electronic
transmission to the corporation.
Subject
to the rights of the holders of any series of Preferred Stock of the corporation
then outstanding, if any, and unless the Board otherwise determines, newly
created directorships resulting from any increase in the authorized number of
directors, or any vacancies on the Board resulting from the death, resignation,
retirement, disqualification, removal from office or other cause shall, unless
otherwise required by law, be filled by the affirmative vote of a majority of
the remaining directors then in office, even though less than a quorum of the
Board, or by a sole remaining director. A person so elected by the
directors then in office to fill a vacancy or newly created directorship shall
hold office until the next election of the class for which such director shall
have been chosen and until his or her successor shall have been duly elected and
qualified. When one or more directors resigns and the resignation is
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective, and each director so chosen shall hold office as
provided in this Section 3.4 in the filling of other
vacancies.
|
3.5
|
PLACE
OF MEETINGS; MEETINGS BY TELEPHONE.
|
The Board
may hold meetings, both regular and special, either within or outside the State
of Delaware.
-9-
Unless
otherwise restricted by the Certificate or these bylaws, members of the Board,
or any committee designated by the Board, may participate in a meeting of the
Board, or any committee, by means of conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
|
3.6
|
REGULAR
MEETINGS.
|
Regular
meetings of the Board may be held without notice at such time and at such place
as shall from time to time be determined by the Board.
|
3.7
|
SPECIAL
MEETINGS; NOTICE.
|
Special
meetings of the Board for any purpose or purposes may be called at any time by
the chairperson of the Board, the chief executive officer, the president, the
secretary or a majority of the authorized number of directors. The
person(s) authorized to call special meetings of the Board may fix the place and
time of the meeting.
Notice of
the time and place of special meetings shall be:
(a) delivered
personally by hand, by courier or by telephone;
(b) sent
by United States first-class mail, postage prepaid;
(c) sent
by facsimile; or
(d) sent
by electronic mail,
directed
to each director at that director’s address, telephone number, facsimile number
or electronic mail address, as the case may be, as shown on the corporation’s
records.
If the
notice is (i) delivered personally by hand, by courier or by telephone,
(ii) sent by facsimile or (iii) sent by electronic mail, it shall be
delivered or sent at least 24 hours before the time of the holding of the
meeting. If the notice is sent by United States mail, it shall be
deposited in the United States mail at least four days before the time of the
holding of the meeting. Any oral notice may be communicated either to
the director or to a person at the office of the director who the person giving
notice has reason to believe will promptly communicate such notice to the
director. The notice need not specify the place of the meeting if the
meeting is to be held at the corporation’s principal executive office nor the
purpose of the meeting.
|
3.8
|
QUORUM.
|
Except as
otherwise required by law or the Certificate, at all meetings of the Board, a
majority of the authorized number of directors (as determined pursuant to
Section 3.2 of these bylaws) shall constitute a quorum for the transaction
of business, except to adjourn as provided in Section 3.11 of these
bylaws. The vote of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board, except as
may be otherwise specifically provided by statute, the Certificate or these
bylaws.
-10-
A meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by
at least a majority of the directors present at that meeting.
|
3.9
|
WAIVER
OF NOTICE.
|
Whenever
notice is required to be given under any provisions of the DGCL, the Certificate
or these bylaws, a written waiver thereof, signed by the person entitled to
notice, or a waiver by electronic transmission by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting solely 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 or any waiver by
electronic transmission unless so required by the Certificate or these
bylaws.
|
3.10
|
BOARD
ACTION BY WRITTEN CONSENT WITHOUT A
MEETING.
|
Unless
otherwise restricted by the Certificate or these bylaws, any action required or
permitted to be taken at any meeting of the Board, or of any committee thereof,
may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing or by electronic transmission and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board or committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic
form.
|
3.11
|
ADJOURNED
MEETING; NOTICE.
|
If a
quorum is not present at any meeting of the Board, then a majority of 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
|
FEES
AND COMPENSATION OF DIRECTORS.
|
Unless
otherwise restricted by the Certificate or these bylaws, the Board shall have
the authority to fix the compensation of directors.
|
3.13
|
REMOVAL
OF DIRECTORS.
|
Unless
otherwise restricted by statute, the Certificate or these Bylaws, any director,
or all of the directors, may be removed from the Board, but only for cause, and
only by the affirmative vote of the holders of at least a majority of the voting
power of all the then outstanding shares of capital stock of the corporation
then entitled to vote at the election of directors, voting together as a single
class.
-11-
ARTICLE
IV — COMMITTEES
|
4.1
|
COMMITTEES
OF DIRECTORS.
|
The Board
may designate one or more committees, each committee to consist of one or more
of the directors of the corporation. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. 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 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 or in these bylaws, shall have and may exercise such
lawfully delegable powers and duties as the Board may confer.
|
4.2
|
COMMITTEE
MINUTES.
|
Each
committee shall keep regular minutes of its meetings and report to the Board
when required.
|
4.3
|
MEETINGS
AND ACTION OF COMMITTEES.
|
Meetings
and actions of committees shall be governed by, and held and taken in accordance
with, the provisions of:
(a) Section 3.5 (relating to
place of meetings and meetings by telephone);
(b) Section 3.6 (relating to
regular meetings);
(c) Section 3.7 (relating to
special meetings and notice);
(d) Section 3.8 (relating to
quorum);
(e) Section 3.9 (relating to
waiver of notice);
(f) Section 3.10 (relating to
action without a meeting); and
(g) Section 3.11 (relating to
adjournment and notice of adjournment)
of these
bylaws, with such changes in the context of those bylaws as are necessary to
substitute the committee and its members for the Board and its
members.
Notwithstanding
the foregoing:
(i) the
time of regular meetings of committees may be determined either by resolution of
the Board or by resolution of the committee;
(ii) special
meetings of committees may also be called by resolution of the Board;
and
-12-
(iii) notice
of special meetings of committees shall also be given to all alternate members,
who shall have the right to attend all meetings of the committee. The
Board 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 shall be a president and a secretary. The
corporation may also have, at the discretion of the Board, a chairperson of the
Board, a vice chairperson of the Board, a chief executive officer, a chief
financial officer or treasurer, one or more vice presidents, one or more
assistant vice presidents, one or more assistant treasurers, one or more
assistant secretaries, and any such other officers as may be appointed in
accordance with the provisions of these bylaws.
Any
number of offices may be held by the same person.
|
5.2
|
APPOINTMENT
OF OFFICERS.
|
The Board
shall appoint the officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Section 5.3 of these
bylaws, subject to the rights, if any, of an officer under any contract of
employment. Each officer shall hold office until his or her successor
is elected and qualified or until his or her earlier resignation or
removal. A failure to elect officers shall not dissolve or otherwise
affect the corporation.
|
5.3
|
SUBORDINATE
OFFICERS.
|
The Board
may appoint, or empower the chief executive officer or, in the absence of a
chief executive officer, the president of the corporation to appoint, such other
officers and agents as the business of the corporation may
require. Each of such officers and agents shall hold office for such
period, have such authority, and perform such duties as are provided in these
bylaws or as the Board may from time to time determine.
|
5.4
|
REMOVAL
AND RESIGNATION OF OFFICERS.
|
Any
officer may be removed, either with or without cause, by an affirmative vote of
the majority of the Board at any regular or special meeting of the Board or,
except in the case of an officer appointed by the Board, by any officer upon
whom such power of removal may be conferred by the Board.
Any
officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that
notice. Unless otherwise specified in the notice of resignation, the
acceptance of the resignation shall 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.
-13-
|
5.5
|
VACANCIES
IN OFFICES.
|
Any
vacancy occurring in any office of the corporation may only be filled by the
Board or as provided in Section 5.3 of these bylaws.
|
5.6
|
REPRESENTATION
OF SHARES OF OTHER CORPORATIONS.
|
The
chairperson of the Board, the chief executive officer, the president, any vice
president, the treasurer, the secretary or assistant secretary of this
corporation, or any other person authorized by the Board, the chief executive
officer, 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 or other equity interests of any other corporation or
entity 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.
|
5.7
|
AUTHORITY
AND DUTIES OF OFFICERS.
|
In
addition to the foregoing authority and duties, all officers of the corporation
shall 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.
ARTICLE
VI — RECORDS AND REPORTS
|
6.1
|
MAINTENANCE
AND INSPECTION OF RECORDS.
|
The
corporation shall, either at its principal executive office or at such place or
places as designated by the Board, 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 may be amended to date, minute books,
accounting books and other records.
Any such
records maintained by the corporation may be kept on, or by means of, or be in
the form of, any information storage device or method, provided that the records
so kept can be converted into clearly legible paper form within a reasonable
time. The corporation shall so convert any records so kept upon the
request of any person entitled to inspect such records pursuant to the
provisions of the DGCL. When records are kept in such manner, a
clearly legible paper form produced from or by means of the information storage
device or method shall be admissible in evidence, and accepted for all other
purposes, to the same extent as an original paper form accurately portrays the
record.
Any
stockholder of record, in person or by attorney or other agent, shall, 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 corporation’s
stock ledger, a list of its stockholders, and its other books and records and to
make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person’s 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 shall 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 shall be directed to the corporation at its registered office in Delaware
or at its principal executive office.
-14-
|
6.2
|
INSPECTION
BY DIRECTORS.
|
Any
director shall have the right to examine the corporation’s stock ledger, a list
of its stockholders, and its other books and records for a purpose reasonably
related to his or her position as a director.
ARTICLE
VII — GENERAL MATTERS
|
7.1
|
CHECKS;
DRAFTS; EVIDENCES OF INDEBTEDNESS.
|
From time
to time, the Board shall 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 shall sign or endorse those
instruments.
7.2
|
EXECUTION
OF CORPORATE CONTRACTS AND
INSTRUMENTS.
|
Except as
otherwise provided in these bylaws, the Board, or any officers of the
corporation authorized thereby, 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.
|
7.3
|
STOCK
CERTIFICATES; PARTLY PAID SHARES.
|
The
shares of the corporation shall be represented by certificates, provided that
the Board may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to shares represented by
a certificate until such certificate is surrendered to the
corporation. Every holder of stock represented by certificates and
upon request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the corporation by the chairperson or
vice-chairperson of the Board, or the president or vice-president, and by the
treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
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 or
she were such officer, transfer agent or registrar at the date of
issue.
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, and upon the books and records of the
corporation in the case of uncertificated partly paid shares, the total amount
of the consideration to be paid therefor and the amount paid thereon shall be
stated. Upon the declaration of any dividend on fully paid shares,
the corporation shall 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.
-15-
|
7.4
|
SPECIAL
DESIGNATION ON CERTIFICATES.
|
If the
corporation is authorized to issue more than one class of stock or more than one
series of any class, then the powers, designations, preferences, and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate that the corporation shall issue to represent such class or
series of stock; provided, however, that, except
as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that
the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences, and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
|
7.5
|
LOST
CERTIFICATES.
|
Except as
provided in this Section 7.5, no new
certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the corporation and cancelled 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 such owner’s
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.
|
7.6
|
DIVIDENDS.
|
The
Board, subject to any restrictions contained in either (a) the DGCL or
(b) the Certificate, may declare and pay dividends upon the shares of its
capital stock. Dividends may be paid in cash, in property, or in
shares of the corporation’s capital stock.
The Board
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.
|
7.7
|
FISCAL
YEAR.
|
The
fiscal year of the corporation shall be fixed by resolution of the Board and may
be changed by the Board.
-16-
|
7.8
|
SEAL.
|
The
corporation may adopt a corporate seal, which shall be adopted and which may be
altered by the Board. The corporation may use the corporate seal by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
|
7.9
|
TRANSFER
OF STOCK.
|
Transfers
of stock shall be made only upon the transfer books of the corporation kept at
an office of the corporation or by transfer agents designated to transfer shares
of the stock of the corporation. Except where a certificate is issued
in accordance with Section 7.5 of these bylaws, an outstanding certificate
for the number of shares involved shall be surrendered for cancellation before a
new certificate is issued therefore. 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 shall 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.
|
7.10
|
STOCK
TRANSFER AGREEMENTS.
|
The
corporation shall have power to enter into and perform any agreement with any
number of stockholders of any one or more classes or series of stock of the
corporation to restrict the transfer of shares of stock of the corporation of
any one or more classes or series owned by such stockholders in any manner not
prohibited by the DGCL.
|
7.11
|
REGISTERED
STOCKHOLDERS.
|
The
corporation:
(a) shall
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;
(b) shall
be entitled to hold liable for calls and assessments on partly paid shares the
person registered on its books as the owner of shares; and
(c) shall
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 shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
|
7.12
|
WAIVER
OF NOTICE.
|
Whenever
notice is required to be given under any provision of the DGCL, the Certificate
or these bylaws, a written waiver, signed by the person entitled to notice, or a
waiver by electronic transmission by the person entitled to notice, whether
before or after the time of the event for which notice is to be given, shall be
deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting solely 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 or any waiver by electronic
transmission unless so required by the Certificate or these bylaws.
-17-
ARTICLE
VIII — NOTICE BY ELECTRONIC TRANSMISSION
|
8.1
|
NOTICE
BY ELECTRONIC TRANSMISSION.
|
Without
limiting the manner by which notice otherwise may be given effectively to
stockholders pursuant to the DGCL, the Certificate or these bylaws, any notice
to stockholders given by the corporation under any provision of the DGCL, the
Certificate or these bylaws shall be effective if given by a form of electronic
transmission consented to by the stockholder to whom the notice is
given. Any such consent shall be revocable by the stockholder by
written notice to the corporation. Any such consent shall be deemed
revoked if:
(a) the
corporation is unable to deliver by electronic transmission two consecutive
notices given by the corporation in accordance with such consent;
and
(b) such
inability becomes known to the secretary or an assistant secretary of the
corporation or to the transfer agent, or other person responsible for the giving
of notice.
However,
the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action.
Any
notice given pursuant to the preceding paragraph shall be deemed
given:
(i) if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice;
(ii) if
by electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice;
(iii) if
by a posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting
and (B) the giving of such separate notice; and
(iv) if
by any other form of electronic transmission, when directed to the
stockholder.
An
affidavit of the secretary or an assistant secretary or of the transfer agent or
other agent of the corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
|
8.2
|
DEFINITION
OF ELECTRONIC TRANSMISSION.
|
An
“electronic transmission” means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be
retained, retrieved, and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
-18-
|
8.3
|
INAPPLICABILITY.
|
Notice by
a form of electronic transmission shall not apply to Section 164 (relating
to failure to pay for stock; remedies), Section 296 (relating to
adjudication of claims; appeal), Section 311 (relating to revocation of
voluntary dissolution), Section 312 (relating to renewal, revival,
extension and restoration of certificate of incorporation) or Section 324
(relating to attachment of shares of stock or any option, right or interest
therein) of the DGCL.
ARTICLE
IX — INDEMNIFICATION OF DIRECTORS AND OFFICERS
|
9.1
|
POWER
TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN
THE RIGHT OF THE CORPORATION.
|
Subject
to Section 9.3 of these bylaws, the corporation shall indemnify, to the
fullest extent permitted by the DGCL, as now or hereafter in effect, any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that such person (or the legal representative
of such person) is or was a director or officer of the corporation or any
predecessor of the corporation, or is or was a director or officer of the
corporation serving at the request of the corporation as a director or officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which such person reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that such
person’s conduct was unlawful.
|
9.2
|
POWER
TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION.
|
Subject
to Section 9.3 of these bylaws, the corporation shall indemnify, to the
fullest extent permitted by the DGCL, as now or hereafter in effect, any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person (or the
legal representative of such person) is or was a director or officer of the
corporation or any predecessor of the corporation, or is or was a director or
officer of the corporation serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
-19-
|
9.3
|
AUTHORIZATION
OF INDEMNIFICATION.
|
Any
indemnification under this Article IX (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Section 9.1 or Section 9.2 of these bylaws, as the case may
be. Such determination shall be made, with respect to a person who is
either a director or officer at the time of such determination or a former
director or officer, (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) by a committee of such directors designated by a majority vote of such
directors, even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion or (iv) by the stockholders (but only if a majority of the
directors who are not parties to such action, suit or proceeding, if they
constitute a quorum of the board of directors, presents the issue of entitlement
to indemnification to the stockholders for their determination). To
the extent, however, that a present or former director or officer of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection
therewith, without the necessity of authorization in the specific
case.
|
9.4
|
GOOD
FAITH DEFINED.
|
For
purposes of any determination under Section 9.3 of these bylaws, to the
fullest extent permitted by applicable law, a person shall be deemed to have
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe such
person’s conduct was unlawful, if such person’s action is based on the records
or books of account of the corporation or another enterprise, or on information
supplied to such person by the officers of the corporation or another enterprise
in the course of their duties, or on the advice of legal counsel for the
corporation or another enterprise or on information or records given or reports
made to the corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the corporation or another enterprise. The term “another enterprise”
as used in this Section 9.4 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the corporation as a
director, officer, employee or agent. The provisions of this
Section 9.4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 9.1 or 9.2 of these bylaws, as the
case may be.
-20-
|
9.5
|
INDEMNIFICATION
BY A COURT.
|
Notwithstanding
any contrary determination in the specific case under Section 9.3 of this
Article IX, and notwithstanding the absence of any determination
thereunder, any director or officer may apply to the Court of Chancery in the
State of Delaware for indemnification to the extent otherwise permissible under
Section 9.1 and Section 9.2 of these bylaws. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standards of conduct set forth in
Section 9.1 or Section 9.2 of these bylaws, as the case may
be. Neither a contrary determination in the specific case under
Section 9.3 of these bylaws nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director
or officer seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to
this Section 9.5 shall be given to the corporation promptly upon the filing
of such application. If successful, in whole or in part, the director
or officer seeking indemnification shall also be entitled to be paid the expense
of prosecuting such application.
|
9.6
|
EXPENSES
PAYABLE IN ADVANCE.
|
To the
fullest extent not prohibited by the DGCL, or by any other applicable law,
expenses incurred by a person who is or was a director or officer in defending
any civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that if the DGCL requires, an
advance of expenses incurred by any person in his or her capacity as a director
or officer (and not in any other capacity) shall be made only upon
receipt of an undertaking by or on behalf of such person to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this
Article IX.
|
9.7
|
NONEXCLUSIVITY
OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES.
|
The
indemnification and advancement of expenses provided by or granted pursuant to
this Article IX shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
the Certificate, any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such person’s official capacity and
as to action in another capacity while holding such office, it being the policy
of the corporation that indemnification of the persons specified in
Section 9.1 and Section 9.2 of these bylaws shall be made to the fullest
extent permitted by law. The provisions of this Article IX shall
not be deemed to preclude the indemnification of any person who is not specified
in Section 9.1 or Section 9.2 of these bylaws but whom the corporation has
the power or obligation to indemnify under the provisions of the DGCL, or
otherwise. 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 DGCL, or by any other applicable law.
-21-
|
9.8
|
INSURANCE.
|
To the
fullest extent permitted by the DGCL or any other applicable law, 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 a
director, officer, employee or agent of the corporation serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person’s status as
such, whether or not the corporation would have the power or the obligation to
indemnify such person against such liability under the provisions of this
Article IX.
|
9.9
|
CERTAIN
DEFINITIONS.
|
For
purposes of this Article IX, references to “the corporation” shall include,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was a director or officer
of such constituent corporation serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this Article IX
with respect to the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate existence had
continued. For purposes of this Article IX, references to
“fines” shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to “serving at the request of the
corporation” shall include any service as a director, officer, employee or agent
of the corporation which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner “not opposed to the best interests of the corporation” as referred to in
this Article IX.
|
9.10
|
SURVIVAL
OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES.
|
The
rights to indemnification and advancement of expenses conferred by this
Article IX shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors, administrators
and other personal and legal representatives of such a person.
|
9.11
|
LIMITATION
ON INDEMNIFICATION.
|
Notwithstanding
anything contained in this Article IX to the contrary, except for
proceedings to enforce rights to indemnification (which shall be governed by
Section 9.5 of these bylaws), the corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the board of directors of the
corporation.
-22-
|
9.12
|
INDEMNIFICATION
OF EMPLOYEES AND AGENTS.
|
The
corporation may, to the extent authorized from time to time by the board of
directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the corporation similar to those conferred in this
Article IX to directors and officers of the corporation.
|
9.13
|
EFFECT
OF AMENDMENT OR REPEAL.
|
Neither
any amendment or repeal of any Section of this Article IX, nor the adoption
of any provision of the Certificate or the bylaws inconsistent with this
Article IX, shall adversely affect any right or protection of any director,
officer, employee or other agent established pursuant to this Article IX
existing at the time of such amendment, repeal or adoption of an inconsistent
provision, including without limitation by eliminating or reducing the effect of
this Article IX, for or in respect of any act, omission or other matter
occurring, or any action or proceeding accruing or arising (or that, but for
this Article IX, would accrue or arise), prior to such amendment, repeal or
adoption of an inconsistent provision.
ARTICLE
X — MISCELLANEOUS
|
10.1
|
PROVISIONS
OF CERTIFICATE GOVERN.
|
In the
event of any inconsistency between the terms of these bylaws and the
Certificate, the terms of the Certificate will govern.
|
10.2
|
CONSTRUCTION;
DEFINITIONS.
|
Unless
the context requires otherwise, the general provisions, rules of construction,
and definitions in the DGCL shall 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.
|
10.3
|
SEVERABILITY.
|
In the
event that any bylaw or the application thereof becomes or is declared by a
court of competent jurisdiction to be illegal, void or unenforceable, the
remaining bylaws will continue in full force and effect.
|
10.4
|
AMENDMENT.
|
The
bylaws of the corporation may be adopted, amended or repealed by a majority of
the voting power of the stockholders entitled to vote; provided, however, that
the corporation may, in its Certificate, also confer the power to adopt, amend
or repeal bylaws upon the Board. The fact that such power has been so
conferred upon the Board shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal bylaws. Notwithstanding
the foregoing and any provision of law that might otherwise permit a lesser vote
or no vote, the Board acting pursuant to a resolution adopted by a majority of
the Board and the affirmative vote of the holders at least sixty-six and
two-thirds percent (66 2/3%) of the voting power of the issued and outstanding
shares of capital stock of the corporation then entitled to vote shall be
required to amend or repeal Section 2.3, the last paragraph of Section 2.9
(relating to no cumulative voting), Section 2.10, Section 2.14, Section 2.15,
Section 3.3, Section 3.4 and Section 3.13 of these bylaws, or this sentence of
this Section 10.4.
-23-
Schedule
I
Investors
Groups
Investors Group A
|
Magnum
Communications Fund LP
|
Magnum
Communications Fund (Israel) LP
|
Magnum
Communications Entrepreneurs Fund LP
|
Investors Group B
|
Concord
Ventures II (Israel), L.P.
|
Concord
Ventures II (Cayman), L.P.
|
Concord
Venture Advisors II (Cayman), L.P.
|
Concord
Venture Advisors II-A (Israel), L.P.
|
Investors Group C
|
Genesis
Partners II LDC
|
Genesis
Partners II (Israel)
L.P.
|
24
WINTEGRA,
INC.
a
Delaware corporation
CERTIFICATE
OF ADOPTION OF AMENDED AND RESTATED BYLAWS
The
undersigned hereby certifies that he or she is the duly elected, qualified, and
acting _______________________ of Wintegra, Inc., a Delaware corporation, and
that the foregoing amended and restated bylaws, comprising _____ pages, were
adopted as the corporation’s bylaws (i) on December 12, 2006 by the
corporation’s board of directors and (ii) on February 28, 2007 by the
stockholders of the corporation.
IN
WITNESS WHEREOF, the undersigned has hereunto set his or her hand this ___ day
of __________, 2007.
By:
Print
Name:
Title:
25