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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
COSINE COMMUNICATIONS, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 94-3280301
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(PRIOR TO REINCORPORATION ) (I.R.S. EMPLOYER IDENTIFICATION NO.)
DELAWARE
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(AFTER REINCORPORATION )
3200 BRIDGE PARKWAY REDWOOD CITY, CALIFORNIA 94065
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form
relates: 333-35938
Securities to be registered pursuant to Section 12(b) of the Act:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
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NONE NONE
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $.0001
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(Title of Class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Incorporated by reference to the information contained in the
section titled "Description of Capital Stock" in the Prospectus
included in the Registrant's Registration Statement on Form S-1
(file number 333-35938), as originally filed or subsequently
amended (the "Registration Statement on Form S-1"), which
Registration Statement on Form S-1 was originally filed with the
Securities and Exchange Commission on April 28, 2000.
ITEM 2. EXHIBITS
The following exhibits are filed as part of this registration
statement:
3.1* Fifth Amended and Restated Articles of Incorporation of
the Registrant.
3.2 Second Amended and Restated Certificate of Incorporation
to be filed upon the closing of the offering made pursuant
to the Form S-1 Registration Statement on Form S-1.
3.3 Amended and Restated Bylaws of the Registrant.
4.1* Form of Registrant's Common Stock Certificate.
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*Incorporated by reference to the corresponding exhibit filed with the
Registration Statement on Form S-1.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
Date: May 26, 2000 COSINE COMMUNICATIONS, INC.
By: /s/ Dean Hamilton
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Dean Hamilton
President and Chief Executive Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Exhibit
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3.1* Fifth Amended and Restated Articles of Incorporation of the
Registrant.
3.2 Second Amended and Restated Certificate of Incorporation to
be filed upon the closing of the offering made pursuant to
the Registrant's Registration Statement on Form S-1 (File
No. 333-35938), as originally filed or subsequently amended
(the "Registration Statement on Form S-1"), which
Registration Statement on Form S-1 was originally filed with
the Securities and Exchange Commission on April 28, 2000.
3.3 Amended and Restated Bylaws of the Registrant.
4.1* Form of Registrant's Common Stock Certificate.
</TABLE>
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* Incorporated by reference to the corresponding exhibit filed with the
Registration Statement on Form S-1.
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EXHIBIT 3.2
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
COSINE COMMUNICATIONS, INC.
CoSine Communications, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
A. The name of the corporation is CoSine Communications, Inc. The
corporation was originally incorporated under the same name and the original
Certificate of Incorporation of the corporation was filed with the Secretary of
State of the State of Delaware on May 16, 2000.
B. This Second Amended and Restated Certificate of Incorporation
restates and integrates and further amends the provisions of the corporation's
Certificate of Incorporation as heretofore amended. The amendments and
restatement herein set forth have been duly approved by the corporation's Board
of Directors and stockholders in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware, with the approval of the
corporation's stockholders having been given by written consent in accordance
with Section 228 of the General Corporation Law of the State of Delaware.
C. The Certificate of Incorporation is hereby restated and further
amended to read in its entirety as follows:
ARTICLE I.
The name of the corporation is CoSine Communications, Inc. (the "Corporation").
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ARTICLE II.
The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, Delaware
19801. The name of its registered agent at such address is the Corporation
Service Company.
ARTICLE III.
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
ARTICLE IV.
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 303,000,000, of which (i) 300,000,000 shares,
par value $0.0001 per share, are to be of a class designated Common Stock
("Common Stock") and (ii) 3,000,000 shares, par value $0.0001 per share, are to
be of a class designated Preferred Stock ("Preferred Stock"). The Preferred
Stock may be issued from time to time in one or more series. The Board of
Directors is hereby authorized, subject to any limitations prescribed by law, to
fix by resolution or resolutions the designations, powers, preferences and
rights, and the qualifications, limitations or restrictions thereof, of each
such series of Preferred Stock, including without limitation authority to fix by
resolution or resolutions, the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and liquidation preferences of any
wholly unissued series of Preferred Stock, and the number of shares constituting
any such series and the designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above
the total number of authorized shares of the class) or decrease (but not below
the number of shares of any such series then outstanding) the number of shares
of any series, the number of which was fixed by it, subsequent to the issue of
shares of such series then outstanding, subject to the powers, preferences and
rights, and the qualifications, limitations and restrictions thereof stated in
the resolution of the Board of Directors originally fixing the number of shares
of such series. If the number of shares of any series is so decreased, then the
shares constituting such decrease shall resume the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such
series.
ARTICLE V.
The Corporation is to have perpetual existence.
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ARTICLE VI.
Elections of directors need not be by written ballot unless the Bylaws
of the Corporation shall so provide.
ARTICLE VII.
1. The management of the business and the conduct of the affairs of the
Corporation shall be vested in its Board of Directors. The number of directors
which constitute the whole Board of Directors of the Corporation shall be fixed
by, or determined in the manner provided in, the Bylaws of the Corporation.
2. Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specified circumstances, the Board of
Directors shall be divided into three classes, as nearly equal in size as is
practicable, designated as Class I, Class II and Class III, respectively.
Directors shall be assigned to each class in accordance with a resolution or
resolutions adopted by the Board of Directors. At the first annual meeting of
stockholders following the date of the closing of the Corporation's initial
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, covering the offer and sale of Common Stock
to the public (the "Initial Public Offering"), the term of office of the Class I
directors shall expire and Class I directors shall be elected for a full term of
three years. At the second annual meeting of stockholders following the date of
the Initial Public Offering, the term of office of the Class II directors shall
expire and Class II directors shall be elected for a full term of three years.
At the third annual meeting of stockholders following the date of the Initial
Public Offering, the term of office of the Class III directors shall expire and
Class III directors shall be elected for a full term of three years. At each
succeeding annual meeting of stockholders, directors shall be elected for a full
term of three years to succeed the directors of the class whose terms expire at
such annual meeting.
3. Notwithstanding the foregoing provisions of this Article VII, each
director shall serve until such director's successor is duly elected and
qualified or until such director's earlier death, resignation or removal. If the
number of directors is hereafter changed, any newly created directorships or
decrease in directorships shall be so apportioned among the classes as to make
all classes as nearly equal in number as is practicable, provided that no
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
4. Subject to the rights of the holders of any series of Preferred
Stock, any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal, or other causes shall be filled by
either (i) the affirmative vote of the holders of a majority of the voting power
of the then-outstanding shares of voting stock of the corporation entitled to
vote generally in the election of directors ("Voting Stock") voting together as
a single class; or (ii) by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. Newly created directorships resulting from any increase in the number
of directors shall, unless the Board of Directors determines by resolution that
any such newly created directorship shall be filled by the stockholders, be
filled only by the affirmative vote of the directors then in office, even though
less than a quorum of the Board of Directors. Any director elected in accordance
with
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the preceding two sentences shall hold office for the remainder of the full term
of the class of directors in which the new directorship was created or the
vacancy occurred.
5. The affirmative vote of sixty-six and two-thirds percent (66-2/3%) of
the voting power of the then outstanding shares of Voting Stock, voting together
as a single class, shall be required for the adoption, amendment or repeal of
the following sections or Articles of the corporation's Bylaws by the
stockholders of this corporation: 2.2 (Annual Meeting), 2.3 (Special Meeting),
2.5 (Advance Notice of Stockholder Nominees and Stockholder Business), 3.2
(Number of Directors) and Article VI (Indemnification).
6. No action shall be taken by the stockholders of the corporation
except at an annual or special meeting of the stockholders called in accordance
with the Bylaws, and no action shall be taken by the stockholders by written
consent.
7. Subject to the rights of any series of Preferred Stock, any director,
or the entire Board of Directors, may be removed from office at any time (i)
with cause by the affirmative vote of the holders of at least a majority of the
voting power of all of the then-outstanding shares of the Voting Stock, voting
together as a single class; or (ii) without cause by the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of the Voting Stock.
ARTICLE VIII.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized to adopt, alter, amend or repeal
the Bylaws of the Corporation.
ARTICLE IX.
1. To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or as may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
2. The Corporation may indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that he, his testator or intestate is or
was a director, officer, employee or agent of the Corporation or any predecessor
of the Corporation or serves or served at any other enterprise as a director,
officer, employee or agent at the request of the Corporation or any predecessor
to the Corporation.
3. Neither any amendment nor repeal of this Article XI, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article XI, shall eliminate or reduce the effect of this Article XI, in respect
of any matter occurring, or any action or proceeding accruing or arising or
that, but for this Article XI, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
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ARTICLE X.
Advance notice of stockholder nominations for the election of directors
of the Corporation and of business to be brought by stockholders before any
meeting of stockholders of the Corporation shall be given in the manner and to
the extent provided in the Bylaws of the Corporation. Business transacted at
special meetings of stockholders shall be confined to the purpose or purposes
stated in the notice of meeting.
ARTICLE XI.
Notwithstanding any other provisions of this Certificate of
Incorporation or any provision of law that might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of Voting Stock required by law, this Certificate of
Incorporation or any Preferred Stock Designation, the affirmative vote of the
holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting
power of all of the then-outstanding shares of Voting Stock, voting together as
a single class, shall be required to alter, amend or repeal Article VI, Article
VII, Article VIII, Article IX, Article X or this Article XI.
ARTICLE XII.
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute (subject to compliance with the requirements of
Article X), and all rights conferred herein are granted subject to this
reservation.
ARTICLE XIII.
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the laws of the State of Delaware)
outside of the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the Bylaws of the Corporation.
D. The foregoing Second Amended and Restated Certificate of
Incorporation of CoSine Communications, Inc. is the act and deed of this
corporation, and the statements therein are true.
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IN WITNESS WHEREOF, the Board of Directors of the Company has caused
this Second Amended and Restated Certificate of Incorporation to be signed by
Dean Hamilton, its President and Chief Executive Officer.
Dated: ___________________, 2000. COSINE COMMUNICATIONS, INC.
By:
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Dean Hamilton
President and Chief Executive Officer
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BYLAWS
OF
COSINE COMMUNICATIONS, INC.
A Delaware Corporation
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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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...................3
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE......................................4
2.7 QUORUM............................................................................4
2.8 ADJOURNED MEETING; NOTICE.........................................................5
2.9 VOTING............................................................................5
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT.................................6
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING...........................6
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.......................7
2.13 PROXIES...........................................................................7
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE.............................................8
2.15 CONDUCT OF BUSINESS...............................................................8
ARTICLE III DIRECTORS............................................................................9
3.1 POWERS............................................................................9
3.2 NUMBER OF DIRECTORS...............................................................9
3.3 CLASSES OF DIRECTORS.............................................................10
3.4 RESIGNATION AND VACANCIES........................................................10
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.........................................11
3.6 REGULAR MEETINGS.................................................................12
3.7 SPECIAL MEETINGS; NOTICE.........................................................12
3.8 QUORUM...........................................................................12
3.9 WAIVER OF NOTICE.................................................................12
3.10 ADJOURNMENT......................................................................13
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
<TABLE>
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3.11 NOTICE OF ADJOURNMENT............................................................13
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING................................13
3.13 FEES AND COMPENSATION OF DIRECTORS...............................................13
3.14 REMOVAL OF DIRECTORS.............................................................13
ARTICLE IV COMMITTEES...........................................................................14
4.1 COMMITTEES OF DIRECTORS..........................................................14
4.2 MEETINGS AND ACTION OF COMMITTEES................................................14
ARTICLE V OFFICERS..............................................................................15
5.1 OFFICERS.........................................................................15
5.2 APPOINTMENT OF OFFICERS..........................................................15
5.3 SUBORDINATE OFFICERS.............................................................15
5.4 REMOVAL AND RESIGNATION OF OFFICERS..............................................15
5.5 VACANCIES IN OFFICES.............................................................16
5.6 CHAIRMAN OF THE BOARD............................................................16
5.7 CHIEF EXECUTIVE OFFICER..........................................................16
5.8 PRESIDENT........................................................................17
5.9 VICE PRESIDENTS..................................................................17
5.10 SECRETARY........................................................................17
5.11 CHIEF FINANCIAL OFFICER..........................................................18
5.12 ASSISTANT SECRETARY..............................................................18
ARTICLE VI INDEMNIFICATION......................................................................18
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS........................................18
6.2 INDEMNIFICATION OF OTHERS........................................................19
6.3 PAYMENT OF EXPENSES IN ADVANCE...................................................19
6.4 INDEMNITY NOT EXCLUSIVE..........................................................20
6.5 INSURANCE........................................................................20
6.6 THE CORPORATION..................................................................20
6.7 EMPLOYEE BENEFIT PLANS...........................................................21
6.8 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES......................21
6.9 AMENDMENTS.......................................................................21
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
<TABLE>
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ARTICLE VII RECORDS AND REPORTS.................................................................22
7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER.....................................22
7.2 MAINTENANCE AND INSPECTION OF BYLAWS.............................................22
7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS............................23
7.4 INSPECTION BY DIRECTORS..........................................................23
7.5 REPRESENTATION OF SHARES OF OTHER CORPORATIONS...................................23
ARTICLE VIII GENERAL MATTERS....................................................................24
8.1 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS........................................24
8.2 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED...............................24
8.3 CERTIFICATES FOR SHARES..........................................................24
8.4 LOST CERTIFICATES................................................................25
8.5 CONSTRUCTION; DEFINITIONS........................................................25
ARTICLE IX AMENDMENTS...........................................................................25
9.1 AMENDMENT BY STOCKHOLDERS........................................................25
9.2 AMENDMENT BY DIRECTORS...........................................................25
ARTICLE X DISSOLUTION...........................................................................26
ARTICLE XI CUSTODIAN............................................................................26
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES......................................26
11.2 DUTIES OF A CUSTODIAN............................................................27
</TABLE>
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BYLAWS
OF
COSINE COMMUNICATIONS, INC.
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE.
The registered office of the corporation shall be 1209 Orange Street, in
the City of Wilmington, County of New Castle, State of Delaware, 19801. The name
of the registered agent of the corporation at such location is The Corporation
Trust Company.
1.2 OTHER OFFICES.
The board of directors may at any time establish branch or subordinate
offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS.
Meetings of stockholders shall be held at any place within or outside
the State of Delaware designated by the board of directors. In the absence of
any such designation, stockholders' meetings shall be held at the principal
executive office 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 first
Monday of May in each year at 10:00 a.m. 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 full 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.
Prior to the closing of the initial firm commitment underwritten public
offering of the common stock of the corporation pursuant to an effective
registration statement filed under the Securities Act of 1933 (the "Initial
Public Offering"), a special meeting of the stockholders may be called at any
time by the board of directors, or by the chairman of the board, by the chief
executive officer, by the president or by one or more shareholders holding
shares in the aggregate entitled to cast not less than ten percent (10%) of the
votes at that meeting. After the Initial Public Offering, a special meeting of
the stockholders may be called at any time by the board of directors, or by the
chairman of the board, by the chief executive officer, by the president or by
the holders of shares entitled to cast not less than a majority of the votes at
that meeting.
If a special meeting is called by any person or persons other than the
board of directors, then 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 other facsimile
transmission to the chairman of the board, the president, any vice president or
the secretary of the corporation. No business may be transacted at such special
meeting other than as specified in the 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 these bylaws, that a
meeting will be held at the time requested by the person or persons calling the
meeting, so long as that time is not less than ten (10) nor more than sixty (60)
days after the receipt of the request. If the notice is not given within twenty
(20) days after receipt of the request, then the person or persons requesting
the meeting may give the notice. Nothing contained in this paragraph of this
Section 2.3 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 of stockholders shall be in writing and shall be
sent or otherwise given in accordance with Section 2.6 of these bylaws not less
than ten (10) nor more than sixty (60) days before the date of the meeting to
each stockholder entitled to vote. The notice shall specify the place, date, and
hour of the meeting and (i) in the case of a special meeting, the general nature
of the business to be transacted (no business other than that specified in the
notice may be transacted) or (ii) in the case of the annual meeting, those
matters which the board of directors, at the time of giving the notice, intends
to present for action by the stockholders. The notice of any meeting at which
directors are to be elected shall include the name of any nominee or nominees
who, at the time of the notice, the board intends to present for election.
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS.
The provisions of this Section 2.5 shall be effective upon the closing
of the Initial Public Offering.
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To be properly brought before an annual meeting or special meeting,
nominations for the election of director or other business must be (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the board of directors, (b) otherwise properly brought before the
meeting by or at the direction of the board of directors, or (c) otherwise
properly brought before the meeting by a stockholder. For such nominations or
other business to be considered properly brought before the meeting by a
stockholder, such stockholder must have given timely notice and in proper form
of his intent to bring such business before such meeting. To be timely, such
stockholder's notice must be delivered to or mailed and received by the
secretary of the corporation not less than 90 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 tenth day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made. To be in
proper form, a stockholder's notice to the secretary shall set forth:
(i) the name and address of the stockholder who intends to make
the nominations, propose the business, and, as the case may
be, the name and address of the person or persons to be
nominated or the nature of the business to be proposed;
(ii) a representation that the stockholder is a holder of record
of 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 or introduce the business specified in the
notice;
(iii) 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;
(iv) 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
(v) if applicable, the consent of each nominee to serve as
director of the corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person or the proposal of any business not made in compliance with the
foregoing procedure.
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2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.
Written notice of any meeting of stockholders shall be given either (i)
personally or (ii) by first-class mail or (iii) by facsimile or other
communication. Notices not personally delivered shall be sent charges prepaid
and shall be 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 mail or facsimile or other communication 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 facsimile or other means of communication.
Pursuant to Section 230(b) of the Delaware General Corporation Law,
whenever (i) notice of two consecutive annual meetings, and all notices of
meetings or the taking of action by written consent without a meeting to such
person during the period between two such consecutive annual meetings, or (ii)
all, and at least two, payments (if sent by first class mail) of dividends or
interest on securities during a twelve month period, have been mailed addressed
to such person at such person's address as shown on the records of the
corporation and have been returned undeliverable, the giving of such notice to
such person shall not be required.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
2.7 QUORUM.
The presence in person or by proxy of the holders of a majority of the
shares entitled to vote thereat constitutes a quorum for the transaction of
business at all meetings of stockholders. The stockholders present at a duly
called or held meeting at which a quorum is present may continue to do 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.
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.
Any stockholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of the majority of the
shares represented at that meeting,
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either in person or by proxy. In the absence of a quorum, no other business may
be transacted at that meeting except as provided in Section 2.7 of these bylaws.
When any meeting of stockholders, either annual or special, is adjourned
to another time or place, notice need not be given of the adjourned meeting if
the time and place are announced at the meeting at which the adjournment is
taken. However, if a new record date for the adjourned meeting is fixed or if
the adjournment is for more than thirty (30) days from the date set for the
original meeting, then notice of the adjourned meeting shall be given. Notice of
any such adjourned meeting shall be given to each stockholder of record entitled
to vote at the adjourned meeting in accordance with the provisions of Sections
2.4 and 2.6 of these bylaws. At any adjourned meeting the corporation may
transact any business which might have been transacted at the original meeting.
2.9 VOTING.
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Sections 2.12 and 2.14 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). Unless
otherwise required by law or the certificate of incorporation, Stockholders'
votes need not be by ballot, and the board of directors shall determine whether
voting is by ballot or by voice vote.
Except as may be otherwise provided in the Certificate of Incorporation,
each outstanding share shall be entitled to one vote on each matter submitted to
a vote of the stockholders. Any stockholder entitled to vote on any matter may
vote part of the shares in favor of the proposal and refrain from voting the
remaining shares or, except when the matter is the election of directors, may
vote them against the proposal; but, if the stockholder fails to specify the
number of shares which the stockholder is voting affirmatively, it will be
conclusively presumed that the stockholder's approving vote is with respect to
all shares which the stockholder is entitled to vote.
If a quorum is present, the affirmative vote of the majority of the
shares represented and voting at a duly held meeting (which shares voting
affirmatively also constitute at least a majority of the required quorum) shall
be the act of the stockholders, unless the vote of a greater number or a vote by
classes is required by the Delaware General Corporation Law or by the
Certificate of Incorporation.
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT.
The transactions of any meeting of stockholders, either annual or
special, however called and noticed, and wherever held, shall be as valid as
though they had been taken at a meeting duly held after regular call and notice,
if a quorum be present either in person or by proxy, and if, either before or
after the meeting, each person entitled to vote, who was not present in person
or by proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. The waiver of notice or consent
or approval need not specify either the business to be transacted or the purpose
of any annual or special meeting of stockholders. All such waivers,
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consents, and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of and presence at that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by the Code to be
included in the notice of the meeting but not so included, if that objection is
expressly made at the meeting.
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting and without prior notice, if a
consent in writing, setting forth the action so taken, is signed by the holders
of outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take that action at a meeting at which all
shares entitled to vote on that action were present and voted.
In the case of election of directors, such a consent shall be effective
only if signed by the holders of all outstanding shares entitled to vote for the
election of directors pursuant to Section 211(b) of the Delaware General
Corporation Law. However, a director may be elected at any time to fill any
vacancy on the board of directors, provided that it was not created by removal
of a director and that it has not been filled by the directors, by the written
consent of the holders of a majority of the outstanding shares entitled to vote
for the election of directors.
All such consents shall be maintained in the corporate records. Any
stockholder giving a written consent, or the stockholder's proxy holders, or a
transferee of the shares, or a personal representative of the stockholder, or
their respective proxy holders, may revoke the consent by a writing received by
the secretary of the corporation before written consents of the number of shares
required to authorize the proposed action have been filed with the secretary.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing. If the action which is consented to is such as
would have required the filing of a certificate under any section of the
Delaware General Corporation Law if such action had been voted on by
stockholders at a meeting thereof, then the certificate filed under such section
shall state, in lieu of any statement required by such section concerning any
vote of stockholders, that written notice and written consent have been given as
provided in Section 228 of the Delaware General Corporation Law.
Notwithstanding the foregoing, effective upon the closing of the Initial
Public Offering, the stockholders of the corporation may not take action by
written consent without a meeting but must take any such actions at a duly
called annual or special meeting.
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2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat or entitled to give consent to corporate action
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) days nor less than ten (10) days before
the date of any such meeting nor more than sixty (60) days before any such
action without a meeting, and in such event only stockholders of record on the
date so fixed are entitled to notice and to vote or to give consents, as the
case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided in the Code.
If the board of directors does not so fix a record date, the fixing of
such record date shall be governed by the provisions of Section 213 of the
Delaware General Corporation Law.
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.
Every person entitled to vote for directors, or on any other matter,
shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the stockholder and filed with the
secretary of the corporation but no such proxy shall be voted or acted upon
after 3 years from its date, unless the proxy provides for a longer period. A
proxy shall be deemed signed if the stockholder's name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission or
otherwise) by the stockholder or the 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(c) of the Delaware General Corporation
Law.
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE.
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least 10 days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list 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 10 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, if not so
specified, at the place where the meeting is to be held. The stock ledger shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list of stockholders or the books of the
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corporation, or to vote in person or by proxy at any meeting of stockholders and
of the number of shares held by each such stockholder.
2.15 CONDUCT OF BUSINESS.
Meetings of stockholders shall be presided over by the chairman of the
board, if any, or in his absence by the president, or in his absence by a vice
president, or in the absence of the foregoing persons by a chairman designated
by the board of directors, or in the absence of such designation by a chairman
chosen at the meeting. The secretary shall act as secretary of the meeting, but
in his absence the chairman of the meeting may appoint any person to act as
secretary of the meeting. The chairman of any meeting of stockholders shall
determine the order of business and the procedures at the meeting, including
such matters as the regulation of the manner of voting and conduct of business.
ARTICLE III
DIRECTORS
3.1 POWERS.
Subject to the provisions of the Delaware General Corporation Law and
any limitations in the Certificate of Incorporation and 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.
Prior to the closing of the Initial Public Offering, the following
provisions shall be effective:
The authorized number of directors shall be not less than
four (4) nor more than seven (7), with the initial number of
directors being five (5). The board of directors shall have the
sole right and power to alter the actual size of the board of
directors within the range specified in this Section 3.2 unless
changed by a duly adopted amendment to the articles of
incorporation or by an amendment to this bylaw adopted by the
vote or written consent of holders of a majority of the
outstanding shares entitled to vote; provided, however, that an
amendment reducing the fixed number or the minimum number of
directors to a number less than five (5) cannot be adopted if the
votes cast against its adoption at a meeting, or the shares not
consenting in the case of an action by written consent, are equal
to more than sixteen and two-thirds percent (16-2/3%) of the
outstanding shares entitled to vote thereon.
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Upon the closing of the Initial Public Offering, the following
provisions shall be effective:
The authorized number of directors shall be seven (7).
This number may be changed by a duly adopted resolution of the
board of directors.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires.
Directors shall be elected at each annual meeting of stockholders to
hold office until the next annual meeting. Each director, including a director
elected to fill a vacancy, shall hold office until the expiration of the term
for which elected and until a successor has been elected and qualified.
3.3 CLASSES OF DIRECTORS.
Upon the closing of the Initial Public Offering, the directors shall be
divided into three classes designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each class in accordance with a
resolution or resolutions adopted by the board of directors. At the first annual
meeting of stockholders following the closing of the Initial Public Offering,
the term of office of the Class I directors shall expire and Class I directors
shall be elected for a full term of three years. At the second annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class II directors shall expire and Class II directors shall be
elected for a full term of three years. At the third annual meeting of
stockholders following the closing of the Initial Public Offering, the term of
office of the Class III directors shall expire and Class III directors shall be
elected for a full term of three years. At each succeeding annual meeting of
stockholders, directors shall be elected for a full term of three years to
succeed the directors of the class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this Article, each director
shall serve until his successor is duly elected and qualified or until his
earlier death, resignation or removal. No decrease in the number of directors
constituting the board of directors shall shorten the term of any incumbent
director.
3.4 RESIGNATION AND VACANCIES.
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary or the board of directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a director is effective at a future time, the
board of directors may elect a successor to take office when the resignation
becomes effective.
Pursuant to Section 223 of the Delaware General Corporation Law, and
unless otherwise provided in the Certificate of Incorporation or these bylaws:
(i) Vacancies in the board of directors and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a
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majority of the remaining directors, even if less than a
quorum, or by a sole remaining director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors
by the provisions of the Certificate of Incorporation,
vacancies and newly created directorships of such class or
classes or series may be filled by a majority of the
directors elected by such class or classes or series thereof
then in office, or by a sole remaining director so elected.
Each director so elected shall hold office until the next annual meeting
of the stockholders and until a successor has been elected and qualified.
A vacancy or vacancies in the board of directors shall be deemed to
exist (i) in the event of the death, resignation or removal of any director,
(ii) if the board of directors by resolution declares vacant the office of a
director who has been declared of unsound mind by an order of court or convicted
of a felony, (iii) if the authorized number of directors is increased, or (iv)
if the stockholders fail, at any meeting of stockholders at which any director
or directors are elected, to elect the number of directors to be elected at that
meeting.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may apply to the Court of Chancery for a decree summarily
ordering an election as provided in Section 211 of the Delaware General
Corporation Law.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least 10% of the total number of the shares at the time outstanding
having the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to replace
the directors chosen by the directors then in office as aforesaid, which
election shall be governed by the provisions of Section 211 of the Delaware
General Corporation Law as far as applicable.
The stockholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors, but any such election
other than to fill a vacancy created by removal, if by written consent, shall
require the consent of the holders of a majority of the outstanding shares
entitled to vote thereon.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE.
Regular meetings of the board of directors may be held at any place
within or outside the State of Delaware that has been designated from time to
time by resolution of the board. In the absence of such a designation, regular
meetings shall be held at the principal executive office of the
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corporation. Special meetings of the board may be held at any place within or
outside the State of Delaware that has been designated in the notice of the
meeting or, if not stated in the notice or if there is no notice, at the
principal executive office of the corporation.
Any meeting, regular or special, may be held by conference telephone or
similar communication equipment, so long as all directors participating in the
meeting can hear one another; and all such directors shall be deemed to be
present in person at the meeting.
3.6 REGULAR MEETINGS.
Regular meetings of the board of directors may be held without notice if
the times of such meetings are fixed by the board of directors.
3.7 SPECIAL MEETINGS; NOTICE.
Special meetings of the board of directors for any purpose or purposes
may be called at any time by the chairman of the board, the president, any vice
president, the secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at that 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 four (4) days before the
time of the holding of the meeting. If the notice is delivered personally or by
telephone or telegram, it shall be delivered personally or by telephone or to
the telegraph company at least forty-eight (48) hours before the time of the
holding of the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
corporation.
3.8 QUORUM.
A majority of the authorized number of directors shall constitute a
quorum for the transaction of business. Every act or decision done or made by a
majority of the directors present at a duly held meeting at which a quorum is
present shall be regarded as the act of the board of directors.
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.
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice or a consent to holding the meeting or an approval of the
minutes thereof, whether before or after the
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meeting, or (ii) who attends the meeting without protesting, prior thereto or at
its commencement, the lack of notice to such directors. All such waivers,
consents, and approvals shall be filed with the corporate records or made part
of the minutes of the meeting. A waiver of notice need not specify the purpose
of any regular or special meeting of the board of directors.
3.10 ADJOURNMENT.
If a quorum is not present at any meeting of the board of directors,
then the directors present, whether or not constituting a quorum, may adjourn
any meeting to another time and place.
3.11 NOTICE OF ADJOURNMENT.
Notice of the time and place of holding an adjourned meeting need not be
given unless the meeting is adjourned for more than twenty-four (24) hours. If
the meeting is adjourned for more than twenty-four (24) hours, then notice of
the time and place of the adjourned meeting shall be given before the adjourned
meeting takes place, in the manner specified in Section 3.7 of these bylaws, to
the directors who were not present at the time of the adjournment.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.
Any action required or permitted to be taken by the board of directors,
or any committee thereof, may be taken without a meeting, provided that all
members of the board or committee, as the case may be individually or
collectively consent in writing to that action. Such action by written consent
shall have the same force and effect as a unanimous vote of the board of
directors. Such written consent and any counterparts thereof shall be filed with
the minutes of the proceedings of the board.
3.13 FEES AND COMPENSATION OF DIRECTORS.
Directors and members of committees may receive such compensation, if
any, for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the board of directors.
3.14 REMOVAL OF DIRECTORS.
Unless otherwise restricted by statute, by the Certificate of
Incorporation or by these bylaws, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors. If at any time a class
or series of shares is entitled to elect one or more directors, the provisions
of this Article 3.14 shall apply to the vote of that class or series and not to
the vote of the outstanding shares as a whole.
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ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS.
The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one (1) or more committees, each
consisting of one or more directors. The board may designate one (1) or more
directors as alternate members of any committee, who may replace any absent
member at any meeting of the committee. The appointment of members or alternate
members of a committee requires the vote of a majority of the authorized number
of directors. In the absence or disqualification of a member of a committee, the
member or members 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 committee, to the extent
provided in the resolution of the board of directors, 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 which may require it; but no
committee shall have the power or authority in reference to the following
matter: (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 bylaw of the corporation.
4.2 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, Section
3.5 (place of meetings), Section 3.6 (regular meetings), Section 3.7 (special
meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice),
Section 3.10 (adjournment), Section 3.11 (notice of adjournment), and Section
3.12 (action without meeting), with such changes in the context of those bylaws
as are necessary to substitute the committee and its members for the board of
directors and its members; provided, however, that the time of regular meetings
of committees may 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.
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ARTICLE V
OFFICERS
5.1 OFFICERS.
The officers of the corporation shall be a chief executive officer,
president, a secretary, and a chief financial officer. The corporation may also
have, at the discretion of the board of directors, a chairman of the board, one
or more vice presidents, one or more assistant secretaries, one or more
assistant treasurers, and 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 Section 5.3 or Section 5.5 of
these bylaws, shall be chosen by the board, 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 may empower the president and
chief executive officer to appoint, such other officers 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.
Any officer may be removed, either with or without cause, by the board
of directors at any regular or special meeting of the board or, except in case
of an officer chosen by the board of directors, by any officer upon whom such
power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect on the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation 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.
5.5 VACANCIES IN OFFICES.
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to that office.
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5.6 CHAIRMAN OF THE BOARD.
The chairman of the board of directors shall have the power to preside
at all meetings of the board of directors and shall have such other powers and
duties as provided in these bylaws and as the board of directors may from time
to time prescribe.
5.7 CHIEF EXECUTIVE OFFICER.
Subject to the control of the board of directors and such supervisory
powers, if any, as may be given by the board of directors, the powers and duties
of the chief executive officer of the corporation are:
(a) To act as the general manager and, subject to the control of the
board of directors, to have general supervision, direction and control of the
business and affairs of the corporation;
(b) To preside at all meetings of the stockholders;
(c) To call meetings of the stockholders to be held at such times and,
subject to the limitations prescribed by law or by these bylaws, at such places
as he or she shall deem proper; and
(d) To affix the signature of the corporation to all deeds, conveyances,
mortgages, guarantees, leases, obligations, bonds, certificates and other papers
and instruments in writing which have been authorized by the board of directors
or which, in the judgment of the chief executive officer, should be executed on
behalf of the corporation; to sign certificates for shares of stock of the
corporation; and, subject to the direction of the board of directors, to have
general charge of the property of the corporation and to supervise and control
all officers, agents and employees of the corporation.
The president shall be the chief executive officer of the
corporation unless the board of directors shall designate another officer to be
the chief executive officer. If there is no president, and the board of
directors has not designated any other officer to be the chief executive
officer, then the chairman of the board of directors shall be the chief
executive officer.
5.8 PRESIDENT.
The president shall be the chief executive officer of the corporation
unless the board of directors shall have designated another officer as the chief
executive officer of the corporation. Subject to the provisions of these bylaws
and to the direction of the board of directors, and subject to the supervisory
powers of the chief executive officer (if the chief executive officer is an
officer other than the president), and subject to such supervisory powers and
authority as may be given by the board of directors to the chairman of the board
of directors, and/or to any other officer, the president shall have
responsibility for the general management and the control of the business and
affairs of the corporation and the general supervision and direction of all of
the officers, employees and agents of the corporation (other than the chief
executive officer, if the chief executive officer is an officer
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other than the president) and shall perform all duties and have all powers that
are commonly incident to the office of president or that are delegated to the
president by the board of directors.
5.9 VICE PRESIDENTS.
In the absence or disability of the president, the vice presidents, if
any, in order of their rank as fixed by the board of directors or, if not
ranked, a vice president designated by the board of directors, 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. 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.
5.10 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. He 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.
5.11 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 money and other valuables
in the name and to the credit of the corporation with such depositaries as may
be designated by the board of directors. He 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 of his
transactions as chief
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financial officer and of the financial condition of the corporation, and shall
have such other powers and perform such other duties 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 the board of
directors or the stockholders may from time to time prescribe.
ARTICLE VI
INDEMNIFICATION
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The corporation shall, to the maximum extent and in the manner permitted
by the Delaware General Corporation Law, indemnify each of its directors and
officers against expenses (including attorneys' fees), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, arising 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.
6.2 INDEMNIFICATION OF OTHERS.
The corporation shall have the power, to the extent and in the manner
permitted by the Delaware General Corporation Law, to indemnify each of its
employees and agents, (other than directors and officers) against expenses
(including attorneys' fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, arising by reason of the fact that such person is or was an
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.
6.3 PAYMENT OF EXPENSES IN ADVANCE.
The corporation shall advance to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, prior to the final disposition of the proceeding, promptly
following request therefor, all expenses incurred by such
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person in connection with such proceeding, upon receipt of an undertaking by or
on behalf of such person to repay said amounts if it should be determined
ultimately that such person is not entitled to be indemnified under this bylaw
or otherwise; provided, however, that the corporation shall not be required to
advance expenses to any director or officer in connection with any proceeding
(or part thereof) initiated by such person unless the proceeding was authorized
in advance by the board of directors of the corporation.
The corporation may advance to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was an employee or agent (other than
directors or officers) of the corporation prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by such
person in connection with such proceeding, upon receipt of an undertaking by or
on behalf of such person to repay said amounts if it should be determined
ultimately that such person is not entitled to be indemnified under this bylaw
or otherwise; provided, however, that the corporation shall not advance expenses
to any employee or agent (other than directors or officers) in connection with
any proceeding (or part thereof) initiated by such person unless the proceeding
was authorized in advance by the board of directors of the corporation.
Notwithstanding the foregoing, the corporation shall not be required to
advance any expenses to a person against whom the corporation directly brings a
claim in any action, suit or proceeding, whether civil, criminal, administrative
or investigative, which claim was approved by resolution of the board of
directors and alleges that such person has breached such person's duty of
loyalty to the corporation, committed an act or omission not in good faith or
that involves intentional misconduct or a knowing violation of law, or derived
an improper personal benefit from a transaction.
6.4 INDEMNITY NOT EXCLUSIVE.
The rights conferred on any person by this Article VI shall not be
deemed exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, bylaws
, agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in an official capacity and as to action in another capacity while
holding such office. The corporation is specifically authorized to enter into
individual contracts with any or all of its directors, officers, employees or
agents respecting indemnification and advances, to the fullest extent not
prohibited by the Delaware General Corporation Law.
6.5 INSURANCE.
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 or
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
him against such liability under the provisions of the Delaware General
Corporation Law.
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6.6 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 with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
6.7 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 he
reasonably deemed to have acted in a manner "not opposed to the best interests
of the corporation" as referred to in this Article VI.
6.8 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 agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
6.9 AMENDMENTS.
Any repeal or modification of this Article VI shall only be
prospective and shall not affect the rights under this Article VI in effect at
the time of the alleged occurrence of any action or omission to act that is the
cause of any threatened, pending or completed action, suit or proceeding against
any director, officer, employee or other agent of the corporation.
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ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF SHARE REGISTER.
The corporation shall keep either at its principal executive office or
at the office of its transfer agent or registrar (if either be appointed), as
determined by resolution of the board of directors, a record of its stockholders
listing the names and addresses of all stockholders and the number and class of
shares held by each stockholder.
A stockholder or stockholders of the corporation who holds at least five
percent (5%) in the aggregate of the outstanding voting shares of the
corporation or who holds at least one percent (1%) of such voting shares and has
filed a Schedule 14B with the Securities and Exchange Commission relating to the
election of directors, may (i) inspect and copy the records of stockholders'
names, addresses, and shareholdings during usual business hours on five (5)
days' prior written demand on the corporation, (ii) obtain from the transfer
agent of the corporation, on written demand and on the tender of such transfer
agent's usual charges for such list, a list of the names and addresses of the
stockholders who are entitled to vote for the election of directors, and their
shareholdings, as of the most recent record date for which that list has been
compiled or as of a date specified by the stockholder after the date of demand.
Such list shall be made available to any such stockholder by the transfer agent
on or before the later of five (5) days after the demand is received or five (5)
days after the date specified in the demand as the date as of which the list is
to be compiled.
The record of stockholders shall also be open to inspection on the
written demand of any stockholder or holder of a voting trust certificate, at
any time during usual business hours, for a purpose reasonably related to the
holder's interests as a stockholder or as the holder of a voting trust
certificate.
Any inspection and copying under this Section 7.1 may be made in person
or by an agent or attorney of the stockholder or holder of a voting trust
certificate making the demand.
7.2 MAINTENANCE AND INSPECTION OF BYLAWS.
The corporation shall keep at its principal executive office or, if its
principal executive office is not in the State of California, at its principal
business office in California the original or a copy of these bylaws as amended
to date, which bylaws shall be open to inspection by the stockholders at all
reasonable times during office hours. If the principal executive office of the
corporation is outside the State of California and the corporation has no
principal business office in such state, then the secretary shall, upon the
written request of any stockholder, furnish to that stockholder a copy of these
bylaws as amended to date.
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7.3 MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS.
The accounting books and records and the minutes of proceedings of the
stockholders, of the board of directors, and of any committee or committees of
the board of directors shall be kept at such place or places as are designated
by the board of directors or, in absence of such designation, at the principal
executive office of the corporation. The minutes shall be kept in written form,
and the accounting books and records shall be kept either in written form or in
any other form capable of being converted into written form.
The minutes and accounting books and records shall be open to inspection
upon the written demand of any stockholder or holder of a voting trust
certificate, at any reasonable time during usual business hours, for a purpose
reasonably related to the holder's interests as a stockholder or as the holder
of a voting trust certificate. The inspection may be made in person or by an
agent or attorney and shall include the right to copy and make extracts. Such
rights of inspection shall extend to the records of each subsidiary corporation
of the corporation.
7.4 INSPECTION BY DIRECTORS.
Every director shall have the absolute right at any reasonable time to
inspect all books, records, and documents of every kind as well as the physical
properties of the corporation and each of its subsidiary corporations. Such
inspection by a director may be made in person or by an agent or attorney. The
right of inspection includes the right to copy and make extracts of documents.
7.5 REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The chairman of the board, 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 herein
granted may be exercised either by such person directly or by any other person
authorized to do so by proxy or power of attorney duly executed by such person
having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS.
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.
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8.2 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED.
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.
8.3 CERTIFICATES FOR SHARES.
A certificate or certificates for shares of the corporation shall be
issued to each stockholder when any of such shares are fully paid. The board of
directors may authorize the issuance of certificates for shares partly paid
provided that these certificates shall state the total amount of the
consideration to be paid for them and the amount actually paid. All certificates
shall be signed in the name of the corporation by the chairman of the board or
the vice chairman of the board or the president or a vice president and by the
chief financial officer or an assistant treasurer or the secretary or an
assistant secretary, certifying the number of shares and the class or series of
shares owned by the stockholder. Any or all of the signatures on the certificate
may be facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed on a certificate ceases to be that officer,
transfer agent or registrar before that certificate is issued, it may be issued
by the corporation with the same effect as if that person were an officer,
transfer agent or registrar at the date of issue.
8.4 LOST CERTIFICATES.
Except as provided in this Section 8.4, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the board may require; the board
may require indemnification of the corporation secured by a bond or other
adequate security sufficient to protect the corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
8.5 CONSTRUCTION; DEFINITIONS.
Unless the context requires otherwise, the general provisions, rules of
construction, and definitions in the Code 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.
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ARTICLE IX
AMENDMENTS
9.1 AMENDMENT BY STOCKHOLDERS.
Until the closing of the Initial Public Offering, new bylaws may be
adopted or these bylaws may be amended or repealed by the vote or written
consent of holders of at least a majority of the outstanding shares entitled to
vote. After the closing of the Initial Public Offering, new bylaws may be
adopted or these bylaws may be amended or repealed by the vote of holders of at
least two-thirds (2/3) of the outstanding shares entitled to vote.
Notwithstanding the foregoing, if the Certificate of Incorporation of the
corporation sets forth the number of authorized directors of the corporation,
then the authorized number of directors may be changed only by an amendment of
the Certificate of Incorporation.
9.2 AMENDMENT BY DIRECTORS.
To the extent provided in the Certificate of Incorporation, the board of
directors shall also have the power to adopt, amend or repeal bylaws of the
corporation.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the board of
directors of the corporation that the corporation should be dissolved, the
board, after the adoption of a resolution to that effect by a majority of the
whole board at any meeting called for that purpose, shall cause notice to be
mailed to each stockholder entitled to vote thereon of the adoption of the
resolution and of a meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the outstanding stock of the corporation entitled
to vote thereon votes for the proposed dissolution, then a certificate stating
that the dissolution has been authorized in accordance with the provisions of
Section 275 of the Delaware General Corporation Law and setting forth the names
and residences of the directors and officers shall be executed, acknowledged,
and filed and shall become effective in accordance with Section 103 of the
Delaware General Corporation Law. Upon such certificate's becoming effective in
accordance with Section 103 of the Delaware General Corporation Law, the
corporation shall be dissolved.
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ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any stockholder, may appoint
one or more persons to be custodians and, if the corporation is insolvent, to be
receivers, of and for the corporation when:
(i) at any meeting held for the election of directors the
stockholders are so divided that they have failed to
elect successors to directors whose terms have expired
or would have expired upon qualification of their
successors; or
(ii) the business of the corporation is suffering or is
threatened with irreparable injury because the
directors are so divided respecting the management of
the affairs of the corporation that the required vote
for action by the board of directors cannot be obtained
and the stockholders are unable to terminate this
division; or
(iii) the corporation has abandoned its business and has
failed within a reasonable time to take steps to
dissolve, liquidate or distribute its assets.
11.2 DUTIES OF A CUSTODIAN
The custodian shall have all the powers and title of a receiver
appointed under Section 291 of the Delaware General Corporation Law, but the
authority of the custodian shall be to continue the business of the corporation
and not to liquidate its affairs and distribute its assets, except when the
Court of Chancery otherwise orders and except in cases arising under Sections
226(a)(3) or 352(a)(2) of the Delaware General Corporation Law.
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CERTIFICATE OF ADOPTION OF BYLAWS
OF
COSINE COMMUNICATIONS, INC.
Adoption by Initial Director
The undersigned person appointed in the certificate of incorporation to
act as the Initial Director of CoSine Communications, Inc. hereby adopts the
foregoing bylaws, comprising twenty-four (24) pages, as the bylaws of the
corporation.
Executed this ___ day of ________ 2000.
----------------------------------------
, Initial Director
----------------------
Certificate by Secretary of Adoption by Initial Director
The undersigned hereby certifies that he is the duly elected, qualified,
and acting Secretary of CoSine Communications, Inc. and that the foregoing
bylaws, comprising twenty-three (23) pages, were adopted as the bylaws of the
corporation on ________ __, 2000, by the person appointed in the certificate of
incorporation to act as the Initial Director of the corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand and
affixed the corporate seal this ___ day of ___________ 2000.
----------------------------------------
, Secretary
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