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8-K - FORM 8-K - PHOENIX TECHNOLOGIES LTD | f57467e8vk.htm |
EX-3.1 - EX-3.1 - PHOENIX TECHNOLOGIES LTD | f57467exv3w1.htm |
EX-99.1 - EX-99.1 - PHOENIX TECHNOLOGIES LTD | f57467exv99w1.htm |
EXHIBIT 3.2
AMENDED
AND RESTATED
BY-LAWS
OF
PHOENIX TECHNOLOGIES LTD.
BY-LAWS
OF
PHOENIX TECHNOLOGIES LTD.
1. OFFICES:
1.1. The Corporation may have an office or offices at such places as the Board of Directors
may from time to time designate.
2. MEETING OF STOCKHOLDERS:
2.1. The annual meeting of stockholders for the election of directors shall be held at such
time and date as may be fixed by the Board of Directors.
2.2. Special meetings of the stockholders may be called at any time by the president, and
shall be called by the president or secretary on the request in writing, or by vote, of a majority
of the directors, or at the request in writing of stockholders of record owning a majority in
amount of the capital stock outstanding and entitled to vote.
2.3. All meetings of the stockholders may be held at such place or places, within or without
the State of Delaware, as may from time to time be fixed by the Board of Directors or as shall be
specified and fixed in the respective notices or waiver of notice thereof.
3. DIRECTORS:
3.1. The property and business of the Corporation shall be managed by, or under the direction
of, its Board of Directors, consisting of one or more directors as determined from time to time by
resolution of the Board of Directors.
3.2. Each director shall hold office until the next annual election, and until such directors
successor is elected and qualified, or until such directors earlier resignation or removal.
Directors shall be elected by the stockholders, except that vacancies in the Board of Directors by
reason of death, resignation or otherwise and newly created directorships may be filled for the
unexpired term by the remaining directors, though less than a quorum, by a majority vote.
4. POWER OF DIRECTORS:
4.1. The Board of Directors shall have such general and specific powers as are conferred upon
corporations by the General Corporation Law of the State of Delaware, as amended from time to time,
subject only to the provisions of the statutes, Certificate of Incorporation, and these By-Laws,
which may restrict or deny such powers.
5. MEETING OF DIRECTORS:
5.1. After each annual election of directors, the newly elected directors may meet for the
purpose of organization, the election of officers, and the transaction of other business, at such
place and time as may be fixed by the stockholders at the annual meeting, and if a majority of the
directors be present at such place and time, no prior notice of such meeting shall be required to
be given to the directors. The place and time of such meeting may also be fixed by written consent
of the directors. Regular meetings of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by the Board of Directors.
5.2. Special meetings of the Board of Directors may be called by the president, and shall be
called by the president or the secretary at the written request of a director, by notice to each
director given two (2) days prior to the meeting if by mail, or one (1) day prior to the meeting if
by telephone, facsimile telecommunication or electronic transmission.
5.3. Special meetings of the Board of Directors may be held within or without the State of
Delaware at such place as is indicated in the notice or waiver of notice thereof.
5.4. A majority of the directors shall constitute a quorum, but a smaller number may adjourn
from time to time, without further notice, until a quorum is secured.
6. EXECUTIVE AND OTHER COMMITTEES:
6.1. The Board of Directors may designate an executive committee and one or more other
committees each to consist of one or more of the directors of the Corporation.
6.2. Any such committee shall 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 to the extent
provided in the resolution of the Board of Directors, subject to applicable laws.
6.3. The executive committee and such other committees shall meet at stated times or on notice
to all by any of their own number. They shall fix their own rules of procedure. A majority shall
constitute a quorum, but unless otherwise determined by the Board of Directors, the affirmative
vote of a majority of the whole committee shall be necessary in every case.
7. OFFICERS OF THE CORPORATION:
7.1. The officers of the Corporation may be a President, one or more Vice-Presidents,
Secretary, Treasurer, and such other officers as may from time to time be chosen by the Board of
Directors.
7.2. Each officer shall hold office until such officers successor is elected and qualified or
until such officers earlier resignation or removal. Any officer may resign at any time upon
written notice to the corporation. Any officer may be removed either with or without cause at any
time by the Board of Directors. If the office of any officer or officers becomes vacant for any
reason, the vacancy shall be filled by the Board of Directors.
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8. DUTIES OF THE PRESIDENT: Unless otherwise determined by the Board of Directors,
8.1. The President shall be the chief executive officer of the Corporation. It shall be the
Presidents duty to preside at all meetings of the stockholders; to have general and active
management of the business and the Corporation; to see that all orders and resolutions of the Board
of Directors are carried into effect; to execute all contracts, agreements, deeds, bonds, mortgages
and other obligations and instruments, in the name of the Corporation, and to affix the corporate
seal thereto when authorized by the Board of Directors or the executive committee.
8.2. The President shall have the general supervision and direction of the other officers of
the Corporation and shall see that their duties are properly performed and shall have the general
duties and powers of supervision and management usually vested in the office of the President of a
Corporation.
9. VICE PRESIDENT: Unless otherwise determined by the Board of Directors,
9.1. The Vice-Presidents, in the order designated by the Board of Directors, shall be vested
with all powers and required to perform all the duties of the President in the Presidents absence
or disability and shall perform such other duties as may be prescribed by the Board of Directors.
10. PRESIDENT PRO TEM:
10.1. In the absence or disability of the President and the Vice-President, the Board of
Directors may appoint from their own number a president pro tem.
11. SECRETARY: Unless otherwise determined by the Board of Directors,
11.1. The Secretary shall attend all meetings of the Corporation, the Board of Directors, the
executive committee and standing committees. The Secretary shall act as clerk thereof and shall
record all of the proceedings of such meetings in a book kept for that purpose. The Secretary
shall give proper notice of meetings of stockholders and Board of Directors and shall perform such
other duties as shall be assigned by the President or the Board of Directors.
12. TREASURER: Unless otherwise determined by the Board of Directors,
12.1. The Treasurer shall have custody of the funds and securities of the Corporation and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of Directors.
12.2. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, executive committee or President, taking proper vouchers for such disbursements, and
shall render to the President and Board of Directors, whenever they may require it, an account of
all his transactions as treasurer, and of the financial condition of the Corporation, and at the
regular meeting of the Board of Directors next preceding the annual stockholders meeting, a like
report for the preceding year.
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12.3. The Treasurer shall keep an account of stock registered and transferred in such manner
and subject to such regulations as the Board of Directors may prescribe.
12.4. The Treasurer shall give the Corporation a bond, if required by the Board of Directors,
in such sum and in form and with security satisfactory to the Board of Directors for the faithful
performance of the duties of his office and the restoration to the Corporation, in case of his
death, resignation or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession, belonging to the Corporation. The Treasurer shall perform such
other duties as the Board of Directors or executive committee may from time to time prescribe or
require.
13. DUTIES OF OFFICERS MAY BE DELEGATED:
13.1. In case of the absence or disability of any officer of the Corporation or for any other
reason deemed sufficient by a majority of the Board of Directors, the Board of Directors may
delegate his powers or duties to any other officer or to any director for the time being.
14. CERTIFICATES OF STOCK:
14.1. Certificates of stock shall be signed by the Chairman, the Vice Chairman, the President
or a Vice-President, and either by the Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary. If a certificate of stock be lost or destroyed, another may be issued in its stead upon
proof of loss or destruction and the giving of a satisfactory bond of indemnity in an amount
sufficient to indemnify the Corporation against any claim. A new certificate may be issued without
requiring bond when, in the judgment of the Board of Directors, it is proper to do so.
15. TRANSFER OF STOCK:
15.1. 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 on its books.
16. STOCKHOLDERS OF RECORD:
16.1. The Corporation shall be entitled to treat the holder of record of any share or shares
of stock as the holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other person whether or
not it shall have express or other notice thereof, save as expressly provided by the laws of
Delaware.
17. FISCAL YEAR:
17.1. The fiscal year of the Corporation shall be determined by the Board of Directors.
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18. DIVIDENDS:
18.1. Dividends upon the capital stock may be declared by the Board of Directors at any
regular or special meeting and may be paid in cash or property or in shares of the capital stock.
The Board of Directors may set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purposes and may alter or abolish any such reserve
or reserves.
19. CHECKS FOR MONEY:
19.1. All checks, drafts or orders for the payment of money shall be signed by the Treasurer
or by such other officer or officers as the Board of Directors may from time to time designate. No
check shall be signed in blank.
20. BOOKS AND RECORDS:
20.1. The books, records and accounts of the Corporation except as otherwise required by the
laws of the State of Delaware, may be kept within or without the State of Delaware, at such place
or places as may from time to time be designated by the By-Laws or by resolution of the Board of
Directors.
21. NOTICES:
21.1. Except as otherwise specifically provided herein or required by law, all notices
required to be given to any stockholder, director, officer, employee or agent shall be in writing
and may in every instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by facsimile
telecommunication or electronic transmission. Any such notice shall be addressed to such
stockholder, director, officer, employee or agent at his or her last known address as the same
appears on the books of the Corporation. The time when such notice is received, if hand delivered,
or when such notice is dispatched, if delivered through the mail, by facsimile telecommunication or
electronic transmission, shall be the time of the giving of the notice.
21.2. A written waiver of any notice, signed by a stockholder, director, officer, employee or
agent, whether before or after the time of the event for which notice is to be given, shall be
deemed equivalent to the notice required to be given to such stockholder, director, officer,
employee or agent. Neither the business nor the purpose of any meeting need be specified in such a
waiver.
22. AMENDMENT:
22.1. These By-Laws may be amended, altered, repealed or supplemented at any regular meeting
of the stockholders or of the Board of Directors or at any special meeting called for that purpose,
by affirmative vote of a majority of the stock issued and outstanding and entitled to vote or of a
majority of the whole board of directors, as the case may be.
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23. INDEMNIFICATION:
23.1. Right to Indemnification:
23.1.1. Each person who was or is a party to, or is threatened to be made a party to, or is
involved in, any action, suit or proceeding, whether civil, criminal, administrative or
investigative (Proceeding), including without limitation Proceedings by or in the right of the
Corporation to procure a judgment in its favor, by reason of the fact that he or she or a person
for whom he or she is the legal representative 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, employee or agent
of another corporation, or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such Proceeding is alleged
action in an official capacity as a director, officer, 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 such amendment permits the corporation to provide broader indemnification rights
than said law permitted the corporation to provide prior to such amendment) against all expenses,
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. Such right shall be a contract right and shall include the right to be paid
by the corporation for expenses incurred in defending any such Proceeding in advance of its final
disposition; provided, however, that the payment of such expenses incurred by a director or officer
of the corporation 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 such
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 should be determined ultimately
that such director or officer is not entitled to be indemnified under this section or otherwise.
23.2. Right of Claimant to Bring Suit:
23.2.1. If a claim under Section 23.1 is not paid in full by the Corporation within sixty (60)
days after a written claim 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 has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make 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 legal counsel, or its 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 legal counsel, or
its stockholders) that the claimant had not met such applicable standard of conduct, shall create a
presumption that claimant had not met the applicable standard of conduct.
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23.3. Non-Exclusivity of Rights:
23.3.1. The rights conferred by Sections 23.1 and 23.2 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, by-law, agreement, vote of stockholders or disinterested directors or
otherwise.
23.4. Insurance:
23.4.1. The corporation may maintain insurance, at its expense, to protect itself and any such
director, officer, employee or agent of the corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware.
DATED: November 23, 2010
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