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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
POWER-ONE, INC.,
A DELAWARE CORPORATION
<PAGE>
TABLE OF CONTENTS
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ARTICLE I
OFFICES
Section 1.1 Registered Office.................................................1
Section 1.2 Principal Office..................................................1
Section 1.3 Other Offices.....................................................1
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Time and Place of Meetings........................................1
Section 2.2 Annual Meetings...................................................1
Section 2.3 Special Meetings..................................................1
Section 2.4 Stockholder Lists.................................................1
Section 2.5 Notice of Meetings................................................2
Section 2.6 Quorum and Adjournment............................................3
Section 2.7 Voting............................................................3
Section 2.8 Proxies...........................................................3
Section 2.9 Inspectors of Election............................................4
Section 2.10 Stockholder Proposals.............................................4
Section 2.11 Record Date for and Delivery of Written Consent...................5
Section 2.12 Inspectors of Written Consent.....................................5
Section 2.13 Effectiveness of Written Consent..................................6
ARTICLE III
DIRECTORS
Section 3.1 Powers............................................................6
Section 3.2 Number, Election and Tenure.......................................6
Section 3.3 Meetings..........................................................6
Section 3.4 Annual Meeting....................................................6
Section 3.5 Regular Meetings..................................................6
Section 3.6 Special Meetings..................................................6
Section 3.7 Quorum............................................................7
Section 3.8 Fees and Compensation.............................................7
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TABLE OF CONTENTS
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Section 3.9 Meetings by Telephonic Communication..............................7
Section 3.10 Committees........................................................7
Section 3.11 Action Without Meetings...........................................8
Section 3.12 Removal...........................................................8
Section 3.13 Nominations.......................................................8
ARTICLE IV
OFFICERS
Section 4.1 Appointment and Salaries..........................................9
Section 4.2 Removal and Resignation...........................................9
Section 4.3 Chairman of the Board.............................................9
Section 4.4 President........................................................10
Section 4.5 Vice President...................................................10
Section 4.6 Secretary and Assistant Secretary................................10
Section 4.7 Treasurer........................................................10
Section 4.8 Assistant Officers...............................................11
ARTICLE V
Seal...........................................................................11
ARTICLE VI
Form of Stock Certificate......................................................11
ARTICLE VII
Representation of Shares of Other Corporations.................................12
ARTICLE VIII
Transfers of Stock.............................................................12
ARTICLE IX
Lost, Stolen or Destroyed Certificates.........................................12
ARTICLE X
Record Date....................................................................12
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TABLE OF CONTENTS
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ARTICLE XI
Registered Stockholders........................................................13
ARTICLE XII
Fiscal Year....................................................................13
ARTICLE XIII
Amendments.....................................................................13
ARTICLE XIV
DIVIDENDS
Section 14.1 Declaration..................................................13
Section 14.2 Set Aside Funds..............................................13
ARTICLE XV
INDEMNIFICATION AND INSURANCE
Section 15.1 Right to Indemnification.....................................14
Section 15.2 Right of Claimant to Bring Suit..............................14
Section 15.3 Non-Exclusivity of Rights....................................15
Section 15.4 Insurance....................................................15
Section 15.5 Expenses as a Witness........................................15
Section 15.6 Indemnity Agreements.........................................15
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AMENDED AND RESTATED BYLAWS
OF
POWER-ONE, INC.,
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office of this
Corporation shall be in the City of Wilmington, County of New Castle, Delaware
and the name of the resident agent in charge thereof is the agent named in the
Restated Certificate of Incorporation until changed by the Board of Directors
(the "Board").
SECTION 1.2 PRINCIPAL OFFICE. The principal office for the
transaction of the business of the Corporation shall be at such place as may be
established by the Board. The Board is granted full power and authority to
change said principal office from one location to another.
SECTION 1.3 OTHER OFFICES. The Corporation may also have an
office or offices at such other places, either within or without the State of
Delaware, as the Board may from time to time designate or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1 TIME AND PLACE OF MEETINGS. Meetings of
stockholders shall be held at such time and place, within or without the State
of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
SECTION 2.2 ANNUAL MEETINGS. Annual meetings of the
stockholders of the Corporation for the purpose of electing directors and for
the transaction of such other proper business as may come before such meetings
may be held at such time, date and place as the Board shall determine by
resolution.
SECTION 2.3 SPECIAL MEETINGS. Except as otherwise specifically
provided in the Corporation's Restated Certificate of Incorporation, special
meetings of the stockholders for any purpose or purposes may be called only by
the Chairman of the Board and shall be called by the Chairman of the Board at
the request in writing of a majority of the Board. Such request shall state the
purpose or purposes of the proposed meeting and the business transacted at any
special meeting shall be limited to the purpose or purposes stated in the
notice.
SECTION 2.4 STOCKHOLDER LISTS. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of stockholders entitled
to vote at the meeting, arranged in
<PAGE>
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting or at the place of
the meeting, and the list shall also be available at the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
SECTION 2.5 NOTICE OF MEETINGS. Notice of each meeting of
stockholders, whether annual or special, stating the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
such meeting has been called, shall be given to each stockholder of record
entitled to vote at such meeting not less than ten nor more than sixty days
before the date of the meeting. Except as otherwise expressly required by law,
notice of any adjourned meeting of the stockholders need not be given if the
time and place thereof are announced at the meeting at which the adjournment is
taken.
Notice of any meeting of stockholders shall be given either
personally or by first-class mail, telegraphic, facsimile or other written
communication, charges prepaid, addressed to the stockholder at the address of
that stockholder appearing on the books of the Corporation or given by the
stockholder to the Corporation for the purpose of notice. If no such address
appears on the Corporation's books or is given, notice shall be deemed to have
been given if sent to that stockholder by first-class mail or telegraphic or
other written communications to the Corporation's principal executive office, or
if published at least once in a newspaper of general circulation in the county
where that office is located. Notice shall be deemed to have been given at the
time when delivered personally or deposited in the mail or sent by telegram or
other means of written communication.
If any notice addressed to a stockholder at the address of
that stockholder appearing on the books of the Corporation or, if given, at the
address given by that stockholder to the Corporation for purpose of notice, is
returned to the Corporation by the United States Postal Service marked to
indicate that the United States Postal Service is unable to deliver the notice
to the stockholder at that address, all future notices or reports shall be
deemed to have been duly given without further mailing if these shall be
available to the stockholder on written demand of the stockholder at the
principal executive office of the Corporation for a period of one year from the
date of the giving of the notice.
An affidavit of the mailing or other means of giving any
notice of any meeting shall be executed by any secretary, assistant secretary,
or any transfer agent of the Corporation giving notice, and shall be filed and
maintained in the minute book of the Corporation.
Whenever any notice is required to be given under the
provisions of applicable statutes, the Restated Certificate of Incorporation or
of these Amended and Restated Bylaws (the "Bylaws"), a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent to such notice.
Notice of any meeting of stockholders shall be deemed waived by any stockholder
who shall attend such meeting in person or by proxy, except a stockholder who
shall attend such meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business
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because the meeting is not lawfully called or convened. Any previously scheduled
meeting of the stockholders may be postponed, and (unless the Restated
Certificate of Incorporation otherwise provides) any special meeting of the
stockholders may be cancelled, by resolution of the Board upon notice given
prior to the date previously scheduled for such meeting of stockholders.
SECTION 2.6 QUORUM AND ADJOURNMENT. 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 for holding all
meetings of stockholders, except as otherwise provided by applicable law or by
the Restated Certificate of Incorporation; provided, however, that the
stockholders present at a duly called or held 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, if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum. Whether or not a quorum is present or
represented at any meeting of stockholders, the Chairman of the meeting or a
majority of the shares so represented may adjourn the meeting from time to time,
without notice other than announcement at the meeting. At such adjourned meeting
at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. If the adjournment is for more than thirty 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. The Chairman of the meeting may determine that a quorum is
present based upon any reasonable evidence of the presence in person or by proxy
of stockholders holding a majority of the outstanding votes, including without
limitation, evidence from any record of stockholders who have signed a register
indicating their presence at the meeting.
SECTION 2.7 VOTING. In all matters (other than the election of
directors which shall require a plurality, subject to any rights granted to any
series of Preferred Stock), when a quorum is present at any meeting, the vote of
the holders of a majority of the capital stock having voting power present in
person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of
applicable law, the Restated Certificate of Incorporation, or these Bylaws, a
different vote is required in which case such express provision shall govern and
control the decision of such question. Such vote may be viva voce or by written
ballot; provided, however, that the Board may, in its discretion, require a
written ballot for any vote, and further provided that all elections for
directors must be by written ballot upon demand made by a stockholder at any
election and before the voting begins.
Unless otherwise provided in the Restated Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder.
SECTION 2.8 PROXIES. Each stockholder entitled to vote at a
meeting of stockholders may authorize in writing another person or persons to
act for such holder by proxy, but no proxy shall be voted or acted upon after
three years from its date, unless the person executing the proxy specifies
therein the period of time for which it is to continue in force.
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SECTION 2.9 INSPECTORS OF ELECTION. The Board by resolution
shall, in advance of any meeting of stockholders, appoint one or more inspectors
to act at the meeting and make a written report thereof. The Board or the
Chairman of the meeting shall appoint one or more alternate inspectors to
replace any inspector who fails to act. Each inspector, before undertaking his
or her duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the
validity of the proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots. The inspector shall perform his or her duties and shall make all
determinations in accordance with the Delaware General Corporation Law
including, without limitation, Section 231 of the Delaware General Corporation
Law.
The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor revocations thereof
or changes thereto, shall be accepted by the inspectors after the closing of the
polls unless the Court of Chancery upon application by a stockholder shall
determine otherwise.
SECTION 2.10 STOCKHOLDER PROPOSALS. At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board, otherwise properly brought
before the meeting by or at the direction of the Board, or otherwise properly
brought before the meeting by a stockholder. In addition to any other applicable
requirements, for business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation, not less than 90 days nor more than 120 days prior to the meeting;
provided, however, that in the event that less than 100 days notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure was made. In no
event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. A stockholder's notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (i) 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, (ii) the name
and record address of the stockholder proposing such business and the beneficial
holder, if any, on whose behalf the proposal is made, (iii) the class and number
of shares of capital stock of the Corporation which are beneficially owned by
the stockholder, (iv) any material interest of the stockholder and the
beneficial holder, if any, in such business.
4
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Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section, provided, however, that nothing in this
Section shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting in accordance with said
procedure.
The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section, and if he
or she should so determine, he or she shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted.
SECTION 2.11 RECORD DATE FOR AND DELIVERY OF WRITTEN CONSENT.
In order that the Corporation may determine the stockholders entitled to consent
to corporate action in writing without a meeting (only where such action has
been previously approved by a majority of the Board), the Board may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board, and which date shall not be more
than 15 days after the date upon which the resolution fixing the record date is
adopted by the Board. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request the Board to fix a record date. The Board shall
promptly, but in all events within 10 days after the date on which such a
request is received, adopt a resolution fixing the record date. If no record
date has been fixed by the Board within 10 days of the date on which such a
request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, shall be at the close
of business on the date on which the Board previously approved such corporate
action. Any stockholder entitled to consent to corporate action in writing
without a meeting may deliver a signed written consent setting forth such
corporate action to the Corporation at its registered office in Delaware or its
principal place of business, or to any officer or agent of the Corporation
having custody of the book in which the proceedings of stockholder meetings are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested.
SECTION 2.12 INSPECTORS OF WRITTEN CONSENT. In the event of
the delivery, in the manner provided by Section 2.11, to the Corporation of the
requisite written consent or consents to take corporate action and/or any
related revocation or revocations, the Board may engage nationally recognized
independent inspectors of elections for the purpose of promptly performing a
ministerial review of the validity of the consents and revocations. For the
purpose of permitting the inspectors to perform such review, if such inspectors
are engaged, no action by written consent without a meeting shall be effective
until such date as the independent inspectors certify to the Corporation that
the consents delivered to the Corporation in accordance with Section 2.11
represent at least the minimum number of votes that would be necessary to take
the corporate action. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board or any stockholder shall not be
entitled to contest the validity of any consent or revocation thereof, whether
before or after such certification by the independent inspectors, or to take any
other action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
5
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SECTION 2.13 EFFECTIVENESS OF WRITTEN CONSENT. Every written
consent shall bear the date of signature of each stockholder who signs the
consent and no written consent shall be effective to take the corporate action
referred to therein unless, within 60 days of the earliest dated written consent
received in accordance with Section 2.11, a written consent or consents signed
by a sufficient number of holders to take such action are delivered to the
Corporation in the manner prescribed in Section 2.11.
ARTICLE III
DIRECTORS
SECTION 3.1 POWERS. The Board shall have the power to manage
or direct the management of the property, business and affairs of the
Corporation, and except as expressly limited by law, to exercise all of its
corporate powers. The Board may establish procedures and rules, or may authorize
the Chairman of any meeting of stockholders to establish procedures and rules,
for the fair and orderly conduct of any meeting including, without limitation,
registration of the stockholders attending the meeting, adoption of an agenda,
establishing the order of business at the meeting, recessing and adjourning the
meeting for the purposes of tabulating any votes and receiving the results
thereof, the timing of the opening and closing of the polls, and the physical
layout of the facilities for the meeting.
SECTION 3.2 NUMBER, ELECTION AND TENURE. The Board shall
consist of one or more members, the number thereof to be determined from time to
time by resolution of the Board. Until otherwise determined by such resolution,
the Board shall consist of 5 members. Directors need not be stockholders.
Directors shall be elected at the annual meeting of stockholders and each
director shall serve until such person's successor is elected and qualified or
until such person's death, retirement, resignation or removal.
SECTION 3.3 MEETINGS. The Board may hold meetings, both
regular and special, either within or outside the State of Delaware.
SECTION 3.4 ANNUAL MEETING. The Board shall meet as soon as
practicable after each annual election of directors.
SECTION 3.5 REGULAR MEETINGS. Regular meetings of the Board
shall be held without call or notice at such time and place as shall from time
to time be determined by resolution of the Board.
SECTION 3.6 SPECIAL MEETINGS. Special meetings of the Board
may be called at any time, and for any purpose permitted by law, by the Chairman
of the Board (or, if the Board does not appoint a Chairman of the Board, the
President), or by the Secretary on the written request of any two members of the
Board unless the Board consists of only one director in which case the special
meeting shall be called on the written request of the sole director, which
meetings shall be held at the time and place designated by the person or persons
calling the meeting. Notice of the time, place and purpose of any such meeting
shall be given to the directors by the Secretary, or in case of the Secretary's
absence, refusal or inability to act, by any other officer. Any such notice may
be given by mail, by telegraph, by telephone, by personal
6
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service, or by any combination thereof as to different directors. If the notice
is by mail, then it shall be deposited in a United States Post Office at least
seventy-two hours before the time of the meeting; if by telegraph, by deposit of
the message with the telegraph company at least forty-eight hours before the
time of the meeting; if by telephone or by personal service, communicated or
delivered at least forty-eight hours before the time of the meeting.
SECTION 3.7 QUORUM. At all meetings of the Board, a majority
of the whole Board shall be necessary and sufficient to 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, except
as may be otherwise specifically provided by applicable law, by the Restated
Certificate of Incorporation or by these Bylaws. Any meeting of the Board may be
adjourned to meet again at a stated day and hour. Even though a quorum is not
present, as required in this Section, a majority of the directors present at any
meeting of the Board, either regular or special, may adjourn from time to time
until a quorum be had. Notice of any adjourned meeting need not be given.
SECTION 3.8 FEES AND COMPENSATION. Each director and each
member of a committee of the Board shall receive such fees and reimbursement of
expenses incurred on behalf of the Corporation or in attending meetings as the
Board may from time to time determine. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
SECTION 3.9 MEETINGS BY TELEPHONIC COMMUNICATION. Members of
the Board or any committee thereof may participate in a regular or special
meeting of such Board 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. Participation in a meeting pursuant to this Section
shall constitute presence in person at such meeting.
SECTION 3.10 COMMITTEES. The Board may, by resolution passed
by a majority of the whole Board, designate 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. Upon
the absence or disqualification of a member of a committee, if the Board has not
designated one or more alternates (or if such alternate(s) are then absent or
disqualified), 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 or alternate. Any
such committee, to the extent provided in the resolution of the Board, shall
have and may exercise all the powers and authority of the Board 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 in reference to: (a) amending
the Restated Certificate of Incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the Board as provided in Section 151(a) of the
Delaware General Corporation Law fix the designations and any of the preferences
or rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any
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other series of the same or any other class or classes of stock of the
Corporation or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series); (b) adopting an agreement of
merger or consolidation under Section 251 or 252 of the Delaware General
Corporation Law; (c) recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets;
(d) recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution; or (e) amending the Bylaws of the Corporation.
Unless the resolution appointing such committee or the Restated Certificate of
Incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend or 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. Each committee shall have such name as may be
determined from time to time by resolution adopted by the Board. Each committee
shall keep minutes of its meetings and report to the Board when required. The
Board shall have the power at any time to fill vacancies in, to change the
membership of, or to dissolve any committee.
SECTION 3.11 ACTION WITHOUT MEETINGS. Unless otherwise
restricted by applicable law, the Restated Certificate of Incorporation, or by
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 of such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of the Board or committee.
SECTION 3.12 REMOVAL. Unless otherwise restricted by the
Restated Certificate of Incorporation or by law, any director or the entire
Board may be removed, but only for cause and only by the affirmative vote of the
holders of at least 80 percent of the voting power of all of the
then-outstanding shares entitled to vote at an election of directors.
SECTION 3.13 NOMINATIONS. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board may be made at a
meeting of stockholders by or at the direction of the Board, by any nominating
committee or person appointed by the Board, or by any stockholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section. Such nominations,
other than those made by or at the direction of the Board, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 90 days nor
more than 120 days prior to the meeting; provided, however, that in the event
that less than 100 days notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice to the Secretary
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection 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 and number of shares of capital stock of the
Corporation which are beneficially owned by the person and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Schedule 14A
under the Securities Exchange Act of 1934, as amended; and (b) as to the
8
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stockholder giving the notice (i) the name and record address of the stockholder
and beneficial holder, if any, and (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as director of the
Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
ARTICLE IV
OFFICERS
SECTION 4.1 APPOINTMENT AND SALARIES. The officers of the
Corporation shall be appointed by the Board and shall consist of Chairman of the
Board, President, Secretary, and Treasurer. The Board or the Chairman of the
Board may also appoint one or more Vice Presidents and such other officers
(including Assistant Secretaries and Financial Officers) as the Board or the
Chairman of the Board may deem necessary or desirable. The officers shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board. The Board shall
fix the salaries of all officers appointed by it. Unless prohibited by
applicable law, the Restated Certificate of Incorporation or these Bylaws, one
person may be elected or appointed to serve in more than one official capacity.
Any vacancy occurring in any office of the Corporation shall be filled by the
Board or, in the case of a vacating officer not appointed by the Board, by the
Chairman of the Board.
SECTION 4.2 REMOVAL AND RESIGNATION. Any officer may be
removed, either with or without cause, by the Board or, in the case of an
officer not appointed by the Board, by the Chairman of the Board. Any officer
may resign at any time by giving notice to the Board, the President or
Secretary. Any such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein and, unless otherwise specified in
such notice, the acceptance of the resignation shall not be necessary to make it
effective.
SECTION 4.3 CHAIRMAN OF THE BOARD. The Chairman of the Board
shall be the chief executive officer of the Corporation and shall, subject to
the control of the Board, have general supervision, direction and control of the
business and affairs of the Corporation. The Chairman of the Board shall preside
at all meetings of the stockholders and at all meetings of the Board. The
Chairman of the Board shall be a member of all other committees, if any, and
shall have the general powers and duties of management usually vested in the
chief executive officer of a corporation, and shall have such other powers and
duties as may be prescribed by the Board or these Bylaws.
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SECTION 4.4 PRESIDENT. The President shall be the chief
operating officer of the Corporation with the powers of a general manager and
shall exercise and perform such powers and duties with respect to the
administration of the business and affairs of the Corporation as may from time
to time be assigned to the President by the Chairman of the Board or by the
Board, or as may be prescribed by these Bylaws. In the absence or disability of
the Chairman of the Board, or in the event and during the period of a vacancy in
that office, the President shall perform all the duties of the Chairman of the
Board, and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the Chairman of the Board of the Corporation.
SECTION 4.5 VICE PRESIDENT. In the absence of the President,
or in the event of the President's inability or refusal to act, the Vice
President, if any, (or if there be more than one Vice President, the Vice
Presidents in the order of their rank or, if of equal rank, then in the order
designated by the Board or the Chairman of the Board or, in the absence of any
designation, then in the order of their appointment) shall perform 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. The rank of Vice Presidents in
descending order shall be Executive Vice President, Senior Vice President and
Vice President. The Vice President shall perform such other duties and have such
other powers as the Board or the Chairman of the Board may from time to time
prescribe.
SECTION 4.6 SECRETARY AND ASSISTANT SECRETARY. The Secretary
shall attend all meetings of the Board (unless the Board shall otherwise
determine) and all meetings of the stockholders and record all the proceedings
of the meetings of the Corporation and of the Board in a book to be kept for
that purpose and shall perform like duties for the committees when required. The
Secretary shall give, or cause to be given, notice of all meetings of
stockholders and special meetings of the Board. The Secretary shall have custody
of the corporate seal of the Corporation and shall (as well as any Assistant
Secretary) have authority to affix the same to any instrument requiring it and
to attest it. The Secretary shall perform such other duties and have such other
powers as the Board or the Chairman of the Board may from time to time
prescribe.
SECTION 4.7 TREASURER. The Treasurer shall have custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board. The
Treasurer may disburse the funds of the Corporation as may be ordered by the
Board or the Chairman of the Board, taking proper vouchers for such
disbursements, and shall render to the Board at its regular meetings, or when
the Board so requires, an account of transactions and of the financial condition
of the Corporation. The Treasurer shall perform such other duties and have such
other powers as the Board or the Chairman of the Board may from time to time
prescribe.
If required by the Board, the Treasurer and Assistant
Treasurer, if any, shall give the Corporation a bond (which shall be renewed at
such times as specified by the Board) in such sum and with such surety or
sureties as shall be satisfactory to the Board for the faithful performance of
the duties of such person's office and for the restoration to the Corporation,
in case of such person's death, resignation, retirement or removal from office,
of all books, papers, vouchers, money and other property of whatever kind in
such person's possession or under such person's control belonging to the
Corporation.
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SECTION 4.8 ASSISTANT OFFICERS. An assistant officer shall, in
the absence of the officer to whom such person is an assistant or in the event
of such officer's inability or refusal to act (or, if there be more than one
such assistant officer, the assistant officers in the order designated by the
Board or the Chairman of the Board or, in the absence of any designation, then
in the order of their appointment), perform the duties and exercise the powers
of such officer. An assistant officer shall perform such other duties and have
such other powers as the Board or the Chairman of the Board may from time to
time prescribe.
ARTICLE V
SEAL
It shall not be necessary to the validity of any instrument
executed by any authorized officer or officers of the Corporation that the
execution of such instrument be evidenced by the corporate seal, and all
documents, instruments, contracts and writings of all kinds signed on behalf of
the Corporation by any authorized officer or officers shall be as effectual and
binding on the Corporation without the corporate seal, as if the execution of
the same had been evidenced by affixing the corporate seal thereto. The Board
may give general authority to any officer to affix the seal of the Corporation
and to attest the affixing by signature.
ARTICLE VI
FORM OF STOCK CERTIFICATE
Every holder of stock in the Corporation shall be entitled to
have a certificate signed by, or in the name of, the Corporation by the Chairman
or Vice-Chairman of the Board, if any, or by the President or a Vice-President,
and by the Treasurer or a Financial Officer, or the Secretary or an Assistant
Secretary certifying the number of shares owned in the Corporation. Any or all
of the signatures on the certificate may be a facsimile signature. If any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have 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 such person were such officer,
transfer agent or registrar at the date of the issuance.
If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, 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. Except as otherwise provided
in Section 202 of the Delaware General Corporation Law, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate 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.
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ARTICLE VII
REPRESENTATION OF SHARES OF OTHER CORPORATIONS
Any and all shares of any other corporation or corporations
standing in the name of the Corporation shall be voted, and all rights incident
thereto shall be represented and exercised on behalf of the Corporation, as
follows: (i) as the Board of the Corporation may determine from time to time, or
(ii) in the absence of such determination, by the Chairman of the Board, or
(iii) if the Chairman of the Board shall not vote or otherwise act with respect
to the shares, by the President. The foregoing authority may be exercised either
by any such officer in person or by any other person authorized so to do by
proxy or power of attorney duly executed by said officer.
ARTICLE VIII
TRANSFERS OF STOCK
Upon surrender of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment 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 upon its books.
ARTICLE IX
LOST, STOLEN OR DESTROYED CERTIFICATES
The Board may direct a new certificate or certificates be
issued in place of any certificate theretofore issued alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of the fact by the person
claiming the certificate to be lost, stolen or destroyed. When authorizing such
issue of a new certificate, the Board may, in its discretion and as a condition
precedent to the issuance, require the owner of such certificate or
certificates, or such person's legal representative, to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the lost, stolen or destroyed
certificate.
ARTICLE X
RECORD DATE
Subject to Section 2.11, the Board may fix in advance a date,
which shall not be more than sixty days nor less than ten days preceding the
date of any meeting of stockholders, nor more than sixty days prior to any other
action other than a consent, as a record date for the determination of
stockholders entitled to notice of or to vote at any such meeting and any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise the rights in
respect of any change, conversion or exchange of stock, and in such case such
stockholders, and only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice of, and to vote at, such
meeting and any adjournment thereof, or to receive payment of such dividend, or
to receive such
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allotment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. If no record date is fixed by the
Board, 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.
ARTICLE XI
REGISTERED STOCKHOLDERS
The Corporation shall be entitled to treat the holder of
record of any share or shares of stock of the Corporation as the holder in fact
thereof and 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, except as expressly provided by applicable
law.
ARTICLE XII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by
resolution of the Board.
ARTICLE XIII
AMENDMENTS
Subject to any contrary or limiting provisions contained in
the Restated Certificate of Incorporation, these Bylaws may be amended or
repealed, or new Bylaws may be adopted (a) by the affirmative vote of the
holders of at least a majority of the Common Stock of the Corporation, or (b) by
the affirmative vote of the majority of the Board at any regular or special
meeting. Any Bylaws adopted or amended by the stockholders may be amended or
repealed by the Board or the stockholders.
ARTICLE XIV
DIVIDENDS
SECTION 14.1 DECLARATION. Dividends on the capital stock of
the Corporation, subject to the provisions of the Restated Certificate of
Incorporation, if any, may be declared by the Board at any regular or special
meeting, pursuant to law, and may be paid in cash, in property or in shares of
capital stock.
SECTION 14.2 SET ASIDE FUNDS. Before payment of any dividend,
there may be set aside out of any funds of the Corporation available for
dividends such sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet
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contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the directors shall
determine to be in the best interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE XV
INDEMNIFICATION AND INSURANCE
SECTION 15.1 RIGHT TO INDEMNIFICATION. Each person who was or
is a party or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, 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
or inaction in an official capacity 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 permitted by the laws of Delaware, as the
same exist or may hereafter be amended, against all costs, charges, expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; PROVIDED, HOWEVER, that the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board. The right to indemnification
conferred in this Article shall be a contract right and shall include the right
to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; PROVIDED, HOWEVER, that, if the
Delaware General Corporation Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action of
the Board, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
SECTION 15.2 RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
Section 15.1 of this Article is not paid in full by the Corporation within
thirty 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, if
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any is required, has been tendered to the Corporation) that the claimant has
failed to meet a standard of conduct which makes it permissible under Delaware
law for the Corporation to indemnify the claimant for the amount claimed.
Neither the failure of the Corporation (including its Board, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is permissible
in the circumstances because he or she has met such standard of conduct, nor an
actual determination by the Corporation (including its Board, independent legal
counsel, or its stockholders) that the claimant has not met such standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has failed to meet such standard of conduct.
SECTION 15.3 NON-EXCLUSIVITY OF RIGHTS. The right to
indemnification and the payment of expenses incurred in defending a proceeding
in advance of its final disposition conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Restated Certificate of Incorporation,
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 15.4 INSURANCE. The Corporation may maintain
insurance, at its expense, to protect itself and any 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 Delaware law.
SECTION 15.5 EXPENSES AS A WITNESS. To the extent that any
director, officer, employee or agent of the Corporation is by reason of such
position, or a position with another entity at the request of the Corporation, a
witness in any action, suit or proceeding, he or she shall be indemnified
against all costs and expenses actually and reasonably incurred by him or her or
on his or her behalf in connection therewith.
SECTION 15.6 INDEMNITY AGREEMENTS. The Corporation may enter
into agreements with any director, officer, employee or agent of the Corporation
providing for indemnification to the full extent permitted by Delaware law.
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CERTIFICATE OF SECRETARY
OF
POWER-ONE, INC.,
A DELAWARE CORPORATION
I hereby certify that I am the duly elected and acting
Secretary of Power-One, Inc., a Delaware corporation, and that the foregoing
Amended and Restated Bylaws, comprising __ pages, constitute the Amended and
Restated Bylaws of said corporation as duly adopted by the Board on July __,
2000.
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Name: Eddie K. Schnopp
Title: Secretary
