EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
SPEEDCOM WIRELESS CORPORATION,
a Delaware corporation
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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............................................ 2
2.4. NOTICE OF STOCKHOLDERS' MEETINGS........................... 2
2.5. ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND
STOCKHOLDER BUSINESS....................................... 2
2.6. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE............... 3
2.7. QUORUM..................................................... 4
2.8. ADJOURNED MEETING; NOTICE.................................. 4
2.9. CONDUCT OF BUSINESS........................................ 4
2.10. VOTING..................................................... 4
2.11. WAIVER OF NOTICE........................................... 5
2.12. RECORD DATE FOR STOCKHOLDER NOTICE; VOTING;
GIVING CONSENTS............................................ 5
2.13. PROXIES.................................................... 5
ARTICLE III DIRECTORS........................................................ 6
3.1. POWERS..................................................... 6
3.2. NUMBER OF DIRECTORS........................................ 6
3.3. ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.... 6
3.4. RESIGNATION AND VACANCIES.................................. 7
3.5. PLACE OF MEETINGS; MEETINGS BY TELEPHONE................... 7
3.6. REGULAR MEETINGS........................................... 8
3.7. SPECIAL MEETINGS; NOTICE................................... 8
3.8. QUORUM..................................................... 8
3.9. WAIVER OF NOTICE........................................... 8
3.10. BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.......... 9
3.11. FEES AND COMPENSATION OF DIRECTORS......................... 9
3.12. APPROVAL OF LOANS TO OFFICERS.............................. 9
3.13. REMOVAL OF DIRECTORS....................................... 9
ARTICLE IV COMMITTEES........................................................10
4.1. COMMITTEES OF DIRECTORS....................................10
4.2. COMMITTEE MINUTES..........................................10
4.3. MEETINGS AND ACTION OF COMMITTEES..........................10
ARTICLE V OFFICERS...........................................................11
5.1. OFFICERS...................................................11
5.2. APPOINTMENT OF OFFICERS....................................11
5.3. SUBORDINATE OFFICERS.......................................11
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5.4. REMOVAL AND RESIGNATION OF OFFICERS; FILLING VACANCIES.....11
5.5. CHAIRMAN OF THE BOARD......................................12
5.6. CHIEF EXECUTIVE OFFICER....................................12
5.7. PRESIDENT..................................................12
5.8. VICE PRESIDENTS............................................12
5.9. SECRETARY..................................................13
5.10. CHIEF FINANCIAL OFFICER....................................13
5.11. TREASURER..................................................13
5.12. ASSISTANT SECRETARY........................................14
5.13. ASSISTANT TREASURER........................................14
5.14. REPRESENTATION OF SHARES OF OTHER CORPORATIONS.............14
5.15. AUTHORITY AND DUTIES OF OFFICERS...........................14
ARTICLE VI INDEMNITY.........................................................14
6.1. THIRD PARTY ACTIONS........................................15
6.2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION..............15
6.3. SUCCESSFUL DEFENSE.........................................16
6.4. DETERMINATION OF CONDUCT...................................16
6.5. PAYMENT OF EXPENSES IN ADVANCE.............................16
6.6. INDEMNITY NOT EXCLUSIVE....................................16
6.7. INSURANCE INDEMNIFICATION..................................17
6.8. THE CORPORATION............................................17
6.9. EMPLOYEE BENEFIT PLANS.....................................17
6.10. CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT
OF EXPENSES................................................17
ARTICLE VII RECORDS AND REPORTS..............................................18
7.1. MAINTENANCE AND INSPECTION OF RECORDS......................18
7.2. INSPECTION BY DIRECTORS....................................18
7.3. ANNUAL STATEMENT TO STOCKHOLDERS...........................18
ARTICLE VIII GENERAL MATTERS.................................................19
8.1. CHECKS.....................................................19
8.2. EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS...........19
8.3. STOCK CERTIFICATES; PARTLY PAID SHARES.....................19
8.4. SPECIAL DESIGNATION ON CERTIFICATES........................19
8.5. LOST CERTIFICATES..........................................20
8.6. CONSTRUCTION; DEFINITIONS..................................20
8.7. DIVIDENDS..................................................20
8.8. FISCAL YEAR................................................20
8.9. SEAL.......................................................21
8.10. TRANSFER OF STOCK..........................................21
8.11. STOCK TRANSFER AGREEMENTS..................................21
8.12. REGISTERED STOCKHOLDERS....................................21
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AMENDED AND RESTATED
BYLAWS
OF
SPEEDCOM WIRELESS CORPORATION,
a Delaware corporation
ARTICLE I
CORPORATE OFFICES
1.1. REGISTERED OFFICE
The registered office of the corporation shall be in the City
of Wilmington, County of New Castle, State of Delaware. The name of the
initial registered agent of the corporation at such location is Lexis
Document Services Inc.
1.2. OTHER OFFICES
The board of directors 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, either
within or without the State of Delaware, as may be designated by the
board of directors or in the manner provided in these bylaws. In the
absence of any such designation, stockholders' meetings shall be held
at the corporate headquarters of the corporation.
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 of directors. In the
absence of such designation, the annual meeting of stockholders shall
be held on the second Friday in May of each year. However, if such day
falls on a legal holiday, then the meeting shall be held at the same
time and place on the next succeeding business day. At the meeting,
directors shall be elected and any other proper business may be
transacted.
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2.3. SPECIAL MEETING
A special meeting of the stockholders may be called at any
time by the board of directors, or by the chairman of the board or the
chief executive officer.
If a special meeting is called by any person or persons other
than the board of directors, the request shall be in writing,
specifying the time of such meeting and the general nature of the
business proposed to be transacted, and shall be delivered personally
or sent by registered mail or by telegraphic or other facsimile
transmission to the chairman of the board, the chief executive officer,
the president or the secretary of the corporation. No business may be
transacted at such special meeting otherwise than specified in such
notice. The officer receiving the request shall cause notice to be
promptly given to the stockholders entitled to vote, in accordance with
The provisions of Sections 2.4 and 2.6 of this Article II, that a
meeting will be held at the time requested by the person or persons
calling the meeting, not less than twenty (20) nor more than sixty (60)
days after the receipt of the request. Nothing contained in this
Section 2.3 shall be construed as limiting, fixing, or affecting the
time when a meeting of stockholders called by action of the board
of directors may be held.
2.4. NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings with stockholders shall be in writing
and shall be sent or otherwise given in accordance with Section 2.6 of
these bylaws not less than twenty (20) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to vote at
such meeting. The notice shall specify the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called.
2.5. ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS
Subject to the rights of holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation,
(a) nominations for the election of directors, and
(b) business proposed to be brought before any stockholder
meeting
may be made by the board of directors or proxy committee appointed by
the board of directors or by any stockholder holding of record at least
200 shares of the stock of the corporation entitled to vote in the
election of directors generally if such nomination or business proposed
is otherwise proper business before such meeting. However, any such
stockholder may nominate one or more persons for election as directors
at a meeting or propose business to be brought before a meeting, or
both, only if such stockholder has given timely notice in proper
written form of their intent to make such nomination or nominations or
to propose such business. To be timely, such stockholder's notice must
be delivered to or mailed and received at the
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principal executive offices of the corporation not less than one
hundred twenty (120) calendar days in advance of the first anniversary
date of mailing of the corporation's proxy statement released to
stockholders in connection with the previous year's annual meeting of
stockholders; provided, however, that in the event that no annual
meeting was held in the previous year or the date of the annual meeting
has been changed by more than thirty (30) days from the date
contemplated at the time of the previous year's proxy statement, notice
by the stockholder to be timely must be so received a reasonable time
before the solicitation is made. To be in proper form, a stockholder's
notice to the secretary shall set forth:
(a) the name and address of the stockholder who intends to make
the nominations or propose the business and, as the case may
be, of the person or persons to be nominated or of the
business to be proposed;
(b) representation that the stockholder is a holder of record of
at least 200 shares of the stock of the corporation entitled
to vote at such meeting and, if applicable, intends to
appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice;
(c) if applicable, 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 nomination or nominations are to be
made by the stockholder;
(d) such other information regarding each nominee or each matter
of business to be proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant
to the proxy rules of the Securities and Exchange Commission
had the nominee been nominated, or intended to be nominated,
or the matter been proposed, or intended to be proposed by
the board of directors; and
(e) the consent of each nominee to serve as director of the
corporation if so elected.
The chairman of the meeting shall refuse to acknowledge the
nomination of any person or the proposal of any business not made in
compliance with the foregoing procedure.
2.6. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is
given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records
of the corporation. An affidavit of the secretary or an assistant
secretary or of the transfer agent of the corporation that the notice
has been given shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.
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2.7. QUORUM
The holders of a majority of the stock issued and outstanding
and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders
for the transaction of business except as otherwise provided by statute
or by the certificate of incorporation. If, however, such quorum is not
present or represented at any meeting of the stockholders, then either
(i) the chairman of the meeting or (ii) the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present or
represented. At such adjourned meeting at which a quorum is present or
represented, any business may be transacted that might have been
transacted at the meeting as originally noticed.
2.8. ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these
bylaws otherwise require, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting the
corporation may transact any business that might have been transacted
at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
2.9. CONDUCT OF BUSINESS
The chairman of any meeting of stockholders shall determine the
order of business and the procedure at the meeting, including
regulation of the manner of voting and the conduct of business.
2.10. VOTING
The stockholders entitled to vote at any meeting of stockholders
shall be determined in accordance with the provisions of Section 2.13
of these bylaws, subject to the provisions of Sections 217 and 218 of
the Delaware General Corporation Law (relating to voting rights of
fiduciaries, pledgors and joint owners of stock and to voting trusts
and other voting agreements).
Except as may be otherwise provided in the certificate of
incorporation, each stockholder shall be entitled to one vote for each
share of capital stock held by such stockholder.
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2.11. WAIVER OF NOTICE
Whenever notice is required to be given under any provision of
the Delaware General Corporation Law or of the certificate of
incorporation or these bylaws, a written waiver, signed 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 for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in any written
waiver of notice unless so required by the certificate of incorporation
or these bylaws.
2.12. RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to express consent to corporate action
in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the board of
directors may fix, in advance, a record date, which shall not be more
than sixty (60) nor less than twenty (20) days before the date of such
meeting, nor more than sixty (60) days prior to any other action.
If the board of directors does not so fix a record date:
(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 for any other
purpose shall be at the close of business on the day on
which the board of directors adopts the resolution relating
thereto.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
2.13. PROXIES
Each stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for such stockholder by
a written proxy, signed by such stockholder and filed with the
secretary of the corporation, but no such proxy shall
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be voted or acted upon after three (3) years from its date, unless the
proxy provides for a longer period. A proxy shall be deemed signed if
such stockholder's name is placed on the proxy by any reasonable means,
including, but not limited to, by facsimile signature, manual
signature, typewriting, telegraphic transmission or otherwise, by such
stockholder or such stockholder's attorney-in-fact. The revocability of
a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Section 212(e) of the Delaware General
Corporation Law.
ARTICLE III
DIRECTORS
3.1. POWERS
Subject to the provisions of the Delaware General Corporation
Law and any limitations in the certificate of incorporation or these
bylaws relating to action required to be approved by the stockholders
or by the outstanding shares, the business and affairs of the
corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the board of directors.
3.2. NUMBER OF DIRECTORS
The board of directors shall consist of no more than seven (7)
members. The number of directors who shall constitute the whole board
shall be such number as the board of directors shall from time to time
designate.
No reduction of the authorized number of directors shall have
the effect of removing any director before that director's term of
office expires.
3.3. ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
The directors shall be divided into three classes, as equal in
number as possible, with the term of office of the first class to
expire at the annual meeting of stockholders to be held in 2001, the
term of office of the second class to expire at the annual meeting of
stockholders to be held in 2002, and the term of office of the third
class to expire at the annual meeting of stockholders to be held in
2003, with each director to hold office until his successor shall have
been duly elected and qualified. At each annual meeting of stockholders
following such initial classification, directors elected to succeed
those directors whose terms 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
successor shall have been duly elected and qualified.
Each director, including a director elected to fill a vacancy,
shall hold office until his successor is elected and qualified or until
his earlier resignation or removal.
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3.4. RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice to the
attention of the secretary of the corporation. When one or more
directors shall resign from the board of directors, 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 in the filling of other
vacancies.
Unless otherwise provided in the certificate of incorporation
or these bylaws:
(a) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by
all of the stockholders having the right to vote as a single
class may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director.
(b) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors
by the certificate of incorporation, vacancies and newly
created directorships of such class or classes or series may
be filled by a majority of the directors elected by such
class or classes or series thereof then in office, or by a
sole remaining director so elected.
If at any time, by reason of death or resignation or other
cause, the corporation should have no directors in office, then any
officer or any stockholder holding at least 1% of the outstanding
stock, or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for
the person or estate of a stockholder, may call a special meeting of
stockholders in accordance with the provisions of the certificate of
incorporation or these bylaws, or may apply to the Court of Chancery
for a decree summarily ordering an election as provided in Section 211
of the Delaware General Corporation Law.
3.5. PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold meetings,
both regular and special, either within or outside the State of
Delaware.
Unless otherwise restricted by the certificate of incorporation or
these bylaws, members of the board of directors, or any committee
designated by the board of directors, may participate in a meeting of
such board of directors, or committee by means of conference telephone
or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting pursuant to this section shall constitute
presence in person at the meeting.
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3.6. REGULAR MEETINGS
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.
3.7. SPECIAL MEETINGS; NOTICE
Special meetings of the board of directors or committees
comprising directors for any purpose or purposes may be called at any
time by the chairman of the board, the chief executive officer, the
president or any two directors.
Notice of the time and place of special meetings shall be
delivered personally, by telephone, or by electronic mail ("e-mail") to
each director or sent by first-class mail, charges prepaid, addressed
in either case to each director at that director's address as it is
shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least seven (7) days
before the time of the holding of the meeting. If the notice is
delivered personally or by telephone or by e-mail, it shall be
delivered personally or by telephone or by e-mail at least forty-eight
(48) hours before the time of the holding of the meeting. Any oral
notice given personally or by telephone may be communicated either to
the director or to a person at the office of the director who the
person giving the notice has reason to believe will promptly
communicate it to the director. The notice need not specify the purpose
or, if the meeting is to be held at the principal executive office of
the corporation, the place of the meeting.
3.8. QUORUM
At all meetings of the board of directors, a majority of the
authorized number of directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of
the board of directors, except as may be otherwise specifically
provided by statute, the certificate of incorporation, or these bylaws.
If a quorum is not present at any meeting of the board of directors,
then the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until
a quorum is present.
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 required
quorum for that meeting.
3.9. WAIVER OF NOTICE
Whenever notice is required to be given under any provision of
the Delaware General Corporation Law, the certificate of incorporation,
or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a
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meeting shall constitute a waiver of notice of such meeting, except
when such person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors, or members of a committee
of directors, need be specified in any written waiver of notice unless
so required by the certificate of incorporation or these bylaws.
3.10. BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of incorporation or
these bylaws, any action required or permitted to be taken at any
meeting of the board of directors, or of any committee thereof may be
taken without a meeting if at least seventy-five percent (75%) of the
members of the board or committee, as the case may be, consent thereto
in writing and the writing or writings are filed with the minutes of
proceedings of the board or committee.
3.11. FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of incorporation or
these bylaws, the board of directors shall have the authority to fix
the compensation of directors.
3.12. APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation
of, or otherwise assist any officer or other employee of the
corporation or of its subsidiary, including any officer or employee who
is a director of the corporation or its subsidiary, whenever, in the
judgment of the directors, such loan, guaranty or assistance may
reasonably be expected to benefit the corporation. The loan, guaranty
or other assistance may be with or without interest and may be
unsecured, or secured in such manner as the board of directors shall
approve, including, without limitation, a pledge of shares of stock of
the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the
corporation at common law or under any statute.
3.13. REMOVAL OF DIRECTORS
Unless otherwise restricted by statute or by the certificate
of incorporation, so long as the board of directors is classified,
holders of a majority of the shares then entitled to vote at the
election of the directors stockholders may remove any director only for
cause. If the board of directors is not classified, the entire board of
directors may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of
directors; provided, however, that, if stockholders of the corporation
are entitled to cumulative voting, if less than the entire board is
to be removed, no director may be removed without cause if the votes
cast against his
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removal would be sufficient to elect such director if then cumulatively
voted at an election of the entire board of directors.
No reduction of the authorized number of directors shall have
the effect of removing any director prior to the expiration of such
director's term of office.
ARTICLE IV
COMMITTEES
4.1. COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, with 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 of directors to act at
the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the board
of directors, or in the bylaws of the corporation, 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, and may
authorize the seal of the corporation to be affixed to all papers that
may require it; but no such committee shall have the power or authority
(i) approving or adopting or recommending to the stockholders, any
action or matter expressly required by the Delaware General Corporation
Law to be submitted to stockholders for approval or (ii) adopting,
amending, or repealing any bylaws of the corporation; and, unless the
board resolution establishing the committee, the bylaws or the
certificate of incorporation expressly so provide, no such committee
shall have the power or authority to declare a dividend, to authorize
the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware General Corporation Law.
4.2. COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
4.3. MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and
held and taken in accordance with, the provisions of Article III 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 of
directors and its members; provided, however, that the time of regular
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meetings of committees may be determined either by resolution of the
board of directors or by resolution of the committee, that special
meetings of committees may also be called by resolution of the board of
directors and that 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 of directors may adopt rules
for the government of any committee not inconsistent with the
provisions of these bylaws.
ARTICLE V
OFFICERS
5.1. OFFICERS
The officers of the corporation shall be a chairman, a chief
executive officer, president, a secretary, a treasurer and a chief
financial officer. The corporation may also have, at the discretion of
the board of directors, one or more vice presidents, one or more
assistant vice presidents, one or more assistant secretaries, one or
more assistant treasurers, and any such other officers as may be
appointed in accordance with the provisions of Section 5.3 of these
bylaws. Any number of offices may be held by the same person.
5.2. APPOINTMENT OF OFFICERS
The officers of the corporation, except such officers as may
be appointed in accordance with the provisions of Sections 5.3 or 5.5
of these bylaws, shall be appointed by the board of directors, subject
to the rights, if any, of an officer under any contract of employment.
5.3. SUBORDINATE OFFICERS
The board of directors may appoint, or empower the president
to appoint, such other officers and agents as the business of the
corporation may require, each of whom shall hold office for such
period, have such authority, and perform such duties as are provided in
these bylaws or as the board of directors may from time to time
determine.
5.4. REMOVAL AND RESIGNATION OF OFFICERS; FILLING VACANCIES
Any officer may be removed, either with or without cause, by
an affirmative vote of the majority of the board of directors at any
regular or special meeting of the board or, except in the case of an
officer chosen by the board of directors, by any officer upon whom such
power of removal may be conferred by the board of directors. Any
removal shall be without prejudice to the rights, if any, of any
contract of employment to which the officer is a party.
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
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time specified in that notice; and, unless otherwise specified in that
notice, 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.
Any vacancy occurring in any office of the corporation shall be
filled by the board of directors.
5.5. CHAIRMAN OF THE BOARD
The chairman of the board, if such an officer be elected, shall,
if present, preside at meetings of the board of directors and exercise
and perform such other powers and duties as may from time to time be
assigned to the chairman of the board by the board of directors or as
may be prescribed by these bylaws. If there is no president and no one
has been appointed chief executive officer, then the chairman of the
board shall also be the chief executive officer of the corporation and
shall have the powers and duties prescribed in Section 5.6 of these
bylaws.
5.6. CHIEF EXECUTIVE OFFICER
The board of directors shall select a chief executive officer
of the corporation who shall be subject to the control of the board of
directors and have general supervision, direction and control of the
business and the officers of the corporation. The chief executive
officer shall preside at all meetings of the stockholders and, in the
absence or nonexistence of a chairman of the board, at all meetings of
the board of directors.
5.7. PRESIDENT
The president shall have the general powers and duties of
management usually vested in the office of president of a corporation
and shall have such other powers and duties as may be prescribed by the
board of directors or these bylaws. In addition and subject to such
supervisory powers, if any, as may be given by the board of directors
to the chairman of the board, if no one has been appointed chief
executive officer, the president shall be the chief executive officer
of the corporation and shall, subject to the control of the board of
directors, have the powers and duties described in Section 5.6.
5.8. VICE PRESIDENTS
In the absence or disability of the president, the chief financial
officer, if any, and then the vice presidents, if any (in order of
their rank as fixed by the board of directors or, if not ranked, a vice
president designated by the board of directors), shall perform all the
duties of the president and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the president.
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The vice presidents shall have such other powers and perform
such other duties as from time to time may be prescribed for them
respectively by the board of directors, these bylaws, the president or
the chairman of the board.
5.9. SECRETARY
The secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the board of
directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes shall
show the time and place of each meeting, whether regular or special
(and, if special, how authorized and the notice given), the names of
those present at directors' meetings or committee meetings, the number
of shares present or represented at stockholders' meetings, and the
proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the
corporation's transfer agent or registrar, as determined by resolution
of the board of directors, a share register, or a duplicate share
register, showing the names of all stockholders and their addresses,
the number and classes of shares held by each, the number and date of
certificates evidencing such shares, and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all
meetings of the stockholders and of the board of directors required to
be given by law or by these bylaws. The secretary shall keep the seal
of the corporation, if one be adopted, in safe custody and shall have
such other powers and perform such other duties as may be prescribed by
the board of directors or by these bylaws.
5.10. CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the
corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings, and shares.
The books of account shall at all reasonable times be open to
inspection by any director.
The chief financial officer shall deposit all moneys and other
valuables in the name and to the credit of the corporation with such
depositories as he shall in his discretion select. The chief financial
officer shall disburse the funds of the corporation as may be ordered
by the board of directors, shall render to the president and directors,
whenever they request it, an account of all his transactions as chief
financial officer and of the financial condition of the corporation,
and shall have other powers and perform such other duties as may be
prescribed by the board of directors or these bylaws.
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5.11. TREASURER
The treasurer shall, in the absence of the chief financial
officer or in the event of his or her inability or refusal to act,
perform the duties and exercise the powers of the chief financial
officer and shall perform such other duties and have such other powers
as may be prescribed by the board of directors or these bylaws.
5.12. ASSISTANT SECRETARY
The assistant secretary, or, if there is more than one, the
assistant secretaries in the order determined by the stockholders or
board of directors (or if there be no such determination, then in the
order of their election) shall, in the absence of the secretary or in
the event of his or her inability or refusal to act, perform the duties
and exercise the powers of the secretary and shall perform such other
duties and have such other powers as may be prescribed by the board of
directors or these bylaws.
5.13. ASSISTANT TREASURER
The assistant treasurer, or, if there is more than one, the
assistant treasurers, in the order determined by the stockholders or
board of directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the chief financial
officer and the treasurer or in the event of their inability or refusal
to act, perform the duties and exercise the powers of the chief
financial officer and shall perform such other duties and have such
other powers as may be prescribed by the board of directors or these
bylaws.
5.14. REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, the chief executive officer, the
president, any vice president, the chief financial officer, the
secretary or assistant secretary of this corporation, or any other
person authorized by the board of directors or the president or a vice
president, is authorized to vote, represent, and exercise on behalf of
this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation.
The authority granted herein may be exercised either by such person
directly or by any other person authorized to do so by proxy or power
of attorney duly executed by such person having the authority.
5.15. 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 of directors or the
stockholders.
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ARTICLE VI
INDEMNITY
6.1. THIRD PARTY ACTIONS
The corporation shall indemnify 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 is or
was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such
settlement is approved in advance by the corporation, which approval
shall not be unreasonably withheld) 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 the person reasonably
believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that the person's conduct was unlawful.
6.2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION
The corporation shall indemnify 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
is or was a director, officer, employee or agent of corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) and amounts paid in settlement (if such settlement is
approved in advance by the corporation, which approval shall not be
unreasonably withheld) 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 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 Delaware 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 Delaware Court of Chancery or such other court
shall deem proper. Notwithstanding any other provision of this Article
VI, no person shall be indemnified hereunder for any
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expenses or amounts paid in settlement with respect to any action to
recover short-swing profits under Section 16(b) of the Securities
Exchange Act of 1934, as amended.
6.3. SUCCESSFUL DEFENSE
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Sections 6.1 and 6.2,
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.
6.4. DETERMINATION OF CONDUCT
Any indemnification under Sections 6.1 and 6.2 (unless ordered
by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that the indemnification of the
director, officer, employee or agent is proper in the circumstances
because such person has met the applicable standard of conduct set
forth in Sections 6.1 and 6.2. Such determination shall be made (1) by
the Board of Directors or the Executive Committee by a majority vote of
a quorum consisting of directors who were not parties to such action,
suit or proceeding or (2) or if such quorum is not obtainable or, even
if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
stockholders. Notwithstanding the foregoing, a director, officer,
employee or agent of the Corporation shall be entitled to contest any
determination that the director, officer, employee or agent has not met
the applicable standard of conduct set forth in Sections 6.1 and 6.2 by
petitioning a court of competent jurisdiction.
6.5. PAYMENT OF EXPENSES IN ADVANCE
Expenses incurred in defending a civil or criminal action, suit or
proceeding, by an individual who may be entitled to indemnification
pursuant to Section 6.1 or 6.2, shall be paid by the corporation in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent 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 VI.
6.6. INDEMNITY NOT EXCLUSIVE
The indemnification and advancement of expenses provided by or
granted pursuant to the other sections of this Article VI shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under 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.
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6.7. INSURANCE INDEMNIFICATION
The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against 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 to indemnify such person against such liability under the
provisions of this Article VI.
6.8. THE CORPORATION
For purposes of this Article VI, 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, officers, and employees or agents, so that any person who is
or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under and subject to the provisions of
this Article VI (including, without limitation, the provisions of
Section 6.4) 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.
6.9. EMPLOYEE BENEFIT PLANS
For purposes of this Article VI, references to "other enterprises"
shall include employee benefit plans; 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, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner 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 VI.
6.10. CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article VI shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or
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agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VII
RECORDS AND REPORTS
7.1. 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 of directors, keep
a record of its stockholders listing their names and addresses and the
number and class of shares held by each stockholder, a copy of these
bylaws as amended to date, accounting books, and other records.
Any stockholder of record, in person or by attorney or other
agent, 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 so to 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 place of business.
7.2. 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 position as a director.
The Court of Chancery is hereby vested with the exclusive jurisdiction
to determine whether a director is entitled to the inspection sought.
The Court may summarily order the corporation to permit the director to
inspect any and all books and records, the stock ledger, and the stock
list and to make copies or extracts therefrom. The Court may, in its
discretion, prescribe any limitations or conditions with reference to
the inspection, or award such other and further relief as the Court
may deem just and proper.
7.3. ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote
of the stockholders, a full and clear statement of the business and
condition of the corporation.
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ARTICLE VIII
GENERAL MATTERS
8.1. CHECKS
From time to time, the board of directors 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.
8.2. EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, except as otherwise provided in these
bylaws, may authorize any officer or officers, or agent or agents, to
enter into any contract or execute any instrument in the name of and on
behalf of the corporation; such authority may be general or confined to
specific instances. Unless so authorized or ratified by the board of
directors or within the agency power of an officer, no officer, agent
or employee shall have any power or authority to bind the corporation
by any contract or engagement or to pledge its credit or to render it
liable for any purpose or for any amount, except for the president and
the chief financial officer.
8.3. STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of the corporation may be represented by certificates
or take the form of uncertificated shares.
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, or 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.
8.4. 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, the
designations, the preferences, and the 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 General Corporation
Law of Delaware, in lieu of the foregoing requirements there may be set
forth on the
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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, the designations, the preferences, and the
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.
8.5. LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates
for shares shall be issued to replace a previously issued certificate
unless the latter is surrendered to the corporation and canceled at the
same time. The corporation may issue a new certificate for stock or
uncertificated shares in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the
corporation may require the owner of the lost, stolen or destroyed
certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate or
uncertificated shares.
8.6. CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions,
rules of construction, and definitions in the Delaware General
Corporation Law 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.
8.7. DIVIDENDS
The directors of the corporation, subject to any restrictions
contained in (i) the Delaware General Corporation Law or (ii) the
certificate of incorporation, 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 directors of the corporation may set apart out of any of
the funds of the corporation available for dividends a reserve or
reserves for any proper purpose and may abolish any such reserve. Such
purposes shall include but not be limited to equalizing dividends,
repairing or maintaining any property of the corporation, and meeting
contingencies.
8.8. FISCAL YEAR
The fiscal year of the corporation shall be the calendar year
unless otherwise fixed by resolution of the board of directors and may
be changed by the board of directors.
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8.9. SEAL
The corporation may adopt a corporate seal, which shall be
adopted and which may be altered by the board of directors, and may use
the same by causing it or a facsimile thereof to be impressed or
affixed or in any other manner reproduced.
8.10. TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it
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.
8.11. 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 of
stock of the corporation to restrict the transfer of shares of stock of
the corporation of any one or more classes owned by such stockholders
in any manner not prohibited by the Delaware General Corporation Law.
8.12. REGISTERED STOCKHOLDERS
The corporation 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, shall be entitled to hold
liable for calls and assessments the person registered on its books as
the owner of any shares described in the second paragraph of Section
8.3, and 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.
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