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EXHIBIT 3.3
VIRATA CORPORATION
a Delaware corporation
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
1.01 Registered Office. The registered office of Virata Corporation
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(hereinafter called the "Corporation") in the State of Delaware shall be at 9
East Loockerman Street, City of Dover, County of Kent, and the name of the
registered agent in charge thereof shall be National Registered Agents, Inc.
1.02 Other Offices. The Corporation may also have an office or offices at
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such other place or places, either within or without the State of Delaware, as
the Board of Directors (hereinafter called the "Board") may from time to time
determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.01 Annual Meetings. Annual meetings of the stockholders of the
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Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution.
2.02 Special Meetings. A special meeting of the stockholders for the
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transaction of any proper business may be called at any time by the Board, or by
the Chairman of the Board, or by the Chief Executive Officer. No other person
or persons are permitted to call a special meeting.
2.03 Place of Meetings. All meetings of the stockholders shall be held at
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such places, within or without the State of Delaware, as may from time to time
be designated by the person or persons calling the respective meeting and
specified in the respective notices or waivers of notice thereof.
2.04 Notice of Meetings. Except as otherwise required by law, notice of
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each meeting of the stockholders, whether annual or special, shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder of record entitled to vote at such meeting by delivering a
typewritten or printed notice thereof to him personally, or by depositing such
notice in the United States mail, in a postage prepaid envelope, directed to him
at his post office address furnished by him to the Secretary of the Corporation
for such purpose or, if he shall not have furnished to the Secretary his address
for such purpose, then at his post office address last known to the Secretary.
Except as otherwise expressly required by law, no publication of any notice of a
meeting of the stockholders shall
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be required. Every notice of a meeting of the stockholders shall state the
place, date and hour of the meeting, and, in the case of a special meeting,
shall also state the purpose or purposes for which the meeting is called. Notice
of any meeting of stockholders shall not be required to be given to any
stockholder who shall have waived such notice and such notice shall be deemed
waived by any stockholder who shall attend such meeting in person or by proxy,
except as a stockholder who shall attend such meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Except as otherwise
expressly required by law, notice of any adjourned meeting of the stockholders
need not be given if the time and place thereof are announced at the meeting at
which the adjournment is taken.
2.05 Quorum. Except in the case of any meeting for the election of
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directors summarily ordered as provided by law, the holders of record of a
majority in voting interest of the shares of stock of the Corporation entitled
to be voted thereat, present in person or by proxy, shall constitute a quorum
for the transaction of business at any meeting of the stockholders of the
Corporation or any adjournment thereof. In the absence of a quorum at any
meeting or any adjournment thereof, a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote thereat or, in
the absence therefrom of all the stockholders, any officer entitled to preside
at, or to act as secretary of, such meeting may adjourn such meeting from time
to time. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
2.06 Voting.
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(a) Each stockholder shall, at each meeting of the stockholders, be
entitled to vote in person or by proxy each share or fractional share of the
stock of the Corporation having voting rights on the matter in question and
which shall have been held by him and registered in his name on the books of the
Corporation:
(i) on the date fixed pursuant to Section 6.05 of these Bylaws as
the record date for the determination of stockholders entitled to notice of
and to vote at such meeting, or
(ii) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice of the
meeting shall be given or, if notice of the meeting shall be waived, at the
close of business on the day next preceding the day on which the meeting
shall be held.
(b) Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the shares entitled to vote in the election of
directors in such other corporation is held, directly or indirectly, by the
Corporation, shall neither be entitled to vote nor be counted for quorum
purposes. Persons holding stock of the Corporation in a fiduciary capacity
shall be entitled to vote such stock. Persons whose stock is pledged shall be
entitled to vote, unless in the transfer by the pledgor on the books of the
Corporation he shall have expressly empowered the pledgee to vote thereon, in
which case only the pledgee, or his proxy, may represent such stock and vote
thereon. Stock having voting power standing of
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record in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants in common, tenants by entirety or otherwise, or with
respect to which two or more persons have the same fiduciary relationship, shall
be voted in accordance with the provisions of the General Corporation Law of the
State of Delaware.
(c) Any such voting rights may be exercised by the stockholder
entitled thereto in person or by his proxy appointed by an instrument in
writing, subscribed by such stockholder or by his attorney thereunto authorized
and delivered to the secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after three years from its date unless said proxy
shall provide for a longer period. The attendance at any meeting of a
stockholder who may theretofore have given a proxy shall not have the effect of
revoking the same unless he shall in writing so notify the secretary of the
meeting prior to the voting of the proxy. At any meeting of the stockholders
all matters, except as otherwise provided in the Certificate of Incorporation,
in these Bylaws or by law, shall be decided by the vote of a majority in voting
interest of the stockholders present in person or by proxy and entitled to vote
thereat and thereon, a quorum being present. The vote at any meeting of the
stockholders on any question need not be by ballot, unless so directed by the
chairman of the meeting. On a vote by ballot each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and it shall state
the number of shares voted.
2.07 List of Stockholders. The Secretary of the Corporation shall prepare
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and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (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 list 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.
2.08 Judges. If at any meeting of the stockholders a vote by written
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ballot shall be taken on any question, the chairman of such meeting may appoint
a judge or judges to act with respect to such vote. Each judge so appointed
shall first subscribe an oath faithfully to execute the duties of a judge at
such meeting with strict impartiality and according to the best of his ability.
Such judges shall decide upon the qualification of the voters and shall report
the number of shares represented at the meeting and entitled to vote on such
question, shall conduct and accept the votes, and, when the voting is completed,
shall ascertain and report the number of shares voted respectively for and
against the question. Reports of judges shall be in writing and subscribed and
delivered by them to the Secretary of the Corporation. The judges need not be
stockholders of the Corporation, and any officer of the Corporation may be a
judge on any question other than a vote for or against a proposal in which he
shall have a material interest.
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2.09 Action Without Meeting. Any action required to be taken at any
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annual or special meeting of stockholders of the Corporation, or any action that
may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. 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.
Notwithstanding the foregoing, after the closing of the Corporation's first
underwritten public offering ("Initial Public Offering") pursuant to which the
Corporation shall have a class of stock registered pursuant to the provisions of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and for so
long as such class is so registered, any action by the stockholders of such
class must be taken at an annual or special meeting of stockholders and may not
be taken by written consent.
2.10 Advance Notice of Stockholder Business. At any meeting of the
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stockholders, only such business shall be conducted as shall have been brought
before the meeting (i) by or at the direction of the Board or (ii) by any
stockholder of the Corporation who complies with the notice procedures set forth
in this Section 2.10 and Section 2.11 of Article II. For business to be
properly brought before any meeting of the stockholders by a stockholder, the
stockholder must have given notice thereof in writing to the Secretary of the
Corporation not less than 90 days in advance of such meeting or, if later, the
tenth day following the first public announcement of the date of such meeting,
and such business must be a proper matter for stockholder action under the
General Corporation Law of the State of Delaware. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting (1) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
(2) the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, (3) the class and number of shares of the
Corporation that are beneficially owned by the stockholder, and (4) any material
interest of the stockholder in such business. In addition, the stockholder
making such proposal shall promptly provide any other information reasonably
requested by the Corporation. The chairman of any such meeting shall have the
power and the duty to determine whether any business proposed to be brought
before the meeting has been made in accordance with the procedure set forth in
these Bylaws and shall direct that any business not properly brought before the
meeting shall not be considered. Notwithstanding anything in these Bylaws to
the contrary, no business shall be conducted at any meeting of the stockholders
except in accordance with the procedures set forth in this Section 2.10 and
Section 2.11 of Article II. For purposes of this Section 2.10 and Section 2.11
of Article II, "public announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or a comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, or any successor provision.
2.11 Advance Notice of Stockholder Nominees. Nominations for the election
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of directors may be made by the Board or by any stockholder entitled to vote in
the election of
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directors; provided, however, that a stockholder may nominate a person for
election as a director at a meeting only if written notice of such stockholder's
intent to make such nomination has been given to the Secretary of the
Corporation not later than 90 days in advance of such meeting or, if later, the
tenth day following the first public announcement of the date of such meeting.
Each such notice shall set forth: (i) the name and address of the stockholder
who intends to make the nomination and of the person or persons to be nominated;
(ii) a representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting and nominate the person or persons specified in the
notice; (iii) 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 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, by the Board; and (v) the
consent of each nominee to serve as a director of the Corporation if so elected.
In addition, the stockholder making such nomination shall promptly provide any
other information reasonably requested by the Corporation. Notwithstanding the
foregoing provisions of this Section 2.11 of Article II, in the event that the
number of directors to be elected to the Board is increased and there is no
public announcement naming either all of the nominees for director or specifying
the size of the increased Board made by the Corporation at least 100 days in
advance of such meeting, a stockholder's notice required by this Section 2.11 of
Article II shall be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary of the Corporation not later than the tenth day following the day on
which such public announcement is first made by the Corporation. No person shall
be eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 2.11 of Article II. The
chairman of any meeting of stockholders shall have the power and the duty to
determine whether a nomination has been made in accordance with the procedure
set forth in this Section 2.11 of Article II and shall direct that any
nomination not made in accordance with these procedures be disregarded.
ARTICLE III
BOARD OF DIRECTORS
3.01 General Powers. The property, business and affairs of the
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Corporation shall be managed by the Board.
3.02 Number and Term of Office. The number of directors which shall
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constitute the whole board shall not be less than three nor more than fourteen.
The first board shall consist of four directors. Thereafter, within the limits
specified, the number of directors shall be determined by resolution of the
board of directors. Directors need not be stockholders. Each of the directors
of the Corporation shall hold office until his successor shall have been duly
elected and shall qualify or until he shall resign or shall have been removed in
the manner hereinafter provided.
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3.03 Election of Directors. Subject to the provisions of the Certificate
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of Incorporation, the Board of Directors shall be classified into three classes
and the members of each class shall serve for a term of three years. At the
first annual meeting of stockholders, one-third of the directors shall be
elected for a term of three years, one-third of the directors shall be elected
for a term of two years and one-third of the directors shall be elected for a
term of one year. If the number of directors is not divisible by three, the
first extra director shall be elected for a term of three years and the second
extra director, if any, shall be elected for a term of two years. At any
subsequent annual meeting of stockholders, a number of directors shall be
elected equal to the number of directors with terms expiring at that annual
meeting. Directors elected at each such annual meeting shall be elected for a
term expiring with the annual meeting of stockholders three years thereafter.
There shall be no right with respect to the shares of stock of the Corporation
to cumulate votes in the election of directors.
3.04 Resignations. Any director of the Corporation may resign at any time
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by giving written notice to the Board or to the Secretary of the Corporation.
Any such resignation shall take effect at the time specified therein, or, if the
time be not specified, it shall take effect immediately upon its receipt; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
3.05 Vacancies. Except as otherwise provided in the Certificate of
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Incorporation, any vacancy in the Board, whether because of death, resignation,
disqualification, an increase in the number of directors, or any other cause,
may be filled by vote of the majority of the remaining directors, although less
than a quorum. Each director so chosen to fill a vacancy shall hold office
until his successor shall have been elected and shall qualify or until he shall
resign or shall have been removed in the manner hereinafter provided. If at any
time the corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
may call a special meeting of stockholders in accordance with the provisions of
the certificate of incorporation and these bylaws, or may apply to the Court of
Chancery for a decree summarily ordering an election as provided in Section 211
of the General Corporation Law of Delaware.
3.06 Place of Meeting, Etc. The Board may hold any of its meetings at
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such place or places within or without the State of Delaware as the Board may
from time to time by resolution designate or as shall be designated by the
person or persons calling the meeting or in the notice or a waiver of notice of
any such meeting. Directors may participate in any regular or special meeting
of the Board by means of conference telephone or similar communications
equipment pursuant to which all persons participating in the meeting of the
Board can hear each other, and such participation shall constitute presence in
person at such meeting.
3.07 First Meeting. The Board shall meet as soon as practicable after
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each annual election of directors and notice of such first meeting shall not be
required.
3.08 Regular Meetings. Regular meetings of the Board may be held at such
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times as the Board shall from time to time by resolution determine. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting
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shall be held at the same hour and place on the next succeeding business day not
a legal holiday. Except as provided by law, notice of regular meetings need not
be given.
3.09 Special Meetings. Special meetings of the Board shall be held
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whenever called by the Chief Executive Officer, the Chairman of the Board or a
majority of the authorized number of directors. Except as otherwise provided by
law or by these Bylaws, notice of the time and place of each such special
meeting shall be mailed to each director, addressed to him at his residence or
usual place of business, at least five (5) days before the day on which the
meeting is to be held, or shall be sent to him or her at such place via
facsimile or be delivered personally or by telephone not less than forty-eight
(48) hours before the time at which the meeting is to be held. Except where
otherwise required by law or by these Bylaws, notice of the purpose of a special
meeting need not be given. Notice of any meeting of the Board shall not be
required to be given to any director who shall have waived such notice and such
notice shall be deemed waived by any director who shall attend such meeting,
except a director who shall attend such meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
3.10 Quorum and Manner of Acting. Except as otherwise provided in these
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Bylaws, the presence of a majority of the authorized number of directors shall
be required to constitute a quorum for the transaction of business at any
meeting of the Board, and all matters shall be decided at any such meeting, a
quorum being present, by the affirmative votes of a majority of the directors
present. In the absence of a quorum, a majority of directors present at any
meeting may adjourn the same from time to time until a quorum shall be present.
Notice of any adjourned meeting need not be given. The directors shall act only
as a Board, and the individual directors shall have no power as such.
3.11 Action by Consent. Any action required or permitted to be taken at
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any meeting of the Board or of any committee thereof may be taken without a
meeting if a written consent thereto is signed by all members of the Board or of
such committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board or committee.
3.12 Removal of Directors. Subject to the provisions of the Certificate
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of Incorporation, any director may be removed at any time, but only for cause
and only by the affirmative vote of the stockholders having 80% of the total
number of shares of the Corporation entitled to vote thereon, but only if notice
of such proposal was contained in the notice of the stockholders' meeting.
3.13 Compensation. The directors shall receive only such compensation for
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their services as directors as may be allowed by resolution of the Board. The
Board may also provide that the Corporation shall reimburse each such director
for any expense incurred by him because of his attendance at any meetings of the
Board or Committees of the Board. Neither the payment of such compensation nor
the reimbursement of such expenses shall be construed to preclude any director
from serving the Corporation or its subsidiaries in any other capacity and
receiving compensation therefor.
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3.14 Committees. The Board may, by resolution passed by a majority of the
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whole Board, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. Any such committee, to the extent
provided in the resolution of the Board and except as otherwise limited by law,
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers that may require it. Any
such committee shall keep written minutes of its meetings and report the same to
the Board at the next regular meeting of the Board. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member.
ARTICLE IV
OFFICERS
4.01 Number. The officers of the Corporation shall be a President, one
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or more Vice Presidents (the number thereof and their respective titles to be
determined by the Board), a Secretary and a Chief Financial Officer. There may
also be other officers, including a Chief Executive Officer or a Chairman of the
Board of Directors, or both, as specified in these Bylaws or designated by the
Board. The Chief Executive Officer and the President shall be elected by the
Board and the Board may elect such other officers as the Board deems necessary
to the Corporation.
4.02 Election, Term of Office and Qualifications. The officers of the
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Corporation, except such officers as may be appointed in accordance with Section
4.03, shall be elected by the Board. Each officer shall hold office until his
successor shall have been duly chosen and shall qualify or until his resignation
or removal in the manner hereinafter provided.
4.03 Assistants, Agents and Employees, Etc. In addition to the officers
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specified in Section 4.01, the Board may appoint other assistants, agents and
employees as it may deem necessary or advisable, including one or more Assistant
Secretaries, and one or more Assistant Treasurers, each of whom shall hold
office for such period, have such authority, and perform such duties as the
Board may from time to time determine. The Board may delegate to any officer of
the Corporation or any committee of the Board the power to appoint, remove and
prescribe the duties of any such assistants, agents or employees.
4.04 Removal. Any officer, assistant, agent or employee of the
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Corporation may be removed, with or without cause, at any time: (i) in the case
of an officer, assistant, agent or employee appointed by the Board, only by
resolution of the Board; and (ii) in the case of an officer, assistant, agent or
employee, by any officer of the Corporation or committee of the Board upon whom
or which such power of removal may be conferred by the Board.
4.05 Resignations. Any officer or assistant may resign at any time by
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giving written notice of his resignation to the Board or the Secretary of the
Corporation. Any such
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resignation shall take effect at the time specified therein, or, if the time be
not specified, upon receipt thereof by the Board or the Secretary, as the case
may be; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
4.06 Vacancies. A vacancy in any office because of death, resignation,
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removal, disqualification, or other cause, may be filled for the unexpired
portion of the term thereof in the manner prescribed in these Bylaws for regular
appointments or elections to such office.
4.07 The Chief Executive Officer. The Chief Executive Officer of the
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Corporation shall have, subject to the control of the Board, general and active
supervision and management over the business of the Corporation and over its
several officers, assistants, agents and employees. The Chief Executive Officer
shall have the general powers and duties of management usually vested in the
office of chief executive officer of a corporation and shall have such other
powers and duties as may be prescribed by the Board or these bylaws.
4.08 The President. The President of the Corporation shall have, subject
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to the control of the Board and the Chief Executive Officer, the general powers
and duties of management usually vested in the office of president of a
corporation and shall have such other powers and duties as may be prescribed by
the Board, the Chief Executive Officer or these bylaws. At the request of the
Chief Executive Officer, or in case of the Chief Executive Officer's absence or
inability to act upon the request of the Board, the President shall perform the
duties of the Chief Executive Officer and when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the Chief Executive
Officer.
4.09 The Vice Presidents. Each Vice President shall have such powers and
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perform such duties as the Board may from time to time prescribe. At the
request of the President, or in case of the President's absence or inability to
act upon the request of the Board, a Vice President shall perform the duties of
the President and when so acting, shall have all the powers of, and be subject
to all the restrictions upon, the President.
4.10 The Secretary. The Secretary shall, if present, record the
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proceedings of all meetings of the Board, of the stockholders, and of all
committees of which a secretary shall not have been appointed in one or more
books provided for that purpose; he shall see that all notices are duly given in
accordance with these Bylaws and as required by law; he shall be custodian of
the seal of the Corporation and shall affix and attest the seal to all documents
to be executed on behalf of the Corporation under its seal; and, in general, he
shall perform all the duties incident to the office of Secretary and such other
duties as may from time to time be assigned to him by the Board.
4.11 The Chief Financial Officer. The Chief Financial Officer shall have
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the general care and custody of the funds and securities of the Corporation, and
shall deposit all such funds in the name of the Corporation in such banks, trust
companies or other depositories as shall be selected by the Board. He shall
receive, and give receipts for, moneys due and payable to the Corporation from
any source whatsoever. He shall exercise general supervision over expenditures
and disbursements made by officers, agents and employees of the Corporation and
the preparation of such records and reports in connection therewith as
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may be necessary or desirable. He shall, in general, perform all other duties
incident to the office of Chief Financial Officer and such other duties as from
time to time may be assigned to him by the Board.
4.12 Representation of Shares of Other Corporations. The Chairman of the
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Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer or any other person authorized by the Board or the Chief
Executive Officer, is authorized to vote, represent and exercise on behalf of
this Corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this Corporation. The
authority granted herein may be exercised either by such person directly or by
any other person authorized to do so by proxy or power of attorney duly executed
by such person having the authority.
4.13 Compensation. The compensation of the officers of the Corporation
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shall be fixed from time to time by the Board or a committee thereof authorized
by the Board. None of such officers shall be prevented from receiving such
compensation by reason of the fact that he is also a director of the
Corporation. Nothing contained herein shall preclude any officer from serving
the Corporation, or any subsidiary corporation, in any other capacity and
receiving such compensation by reason of the fact that he is also a director of
the Corporation. Nothing contained herein shall preclude any officer from
serving the Corporation, or any subsidiary corporation, in any other capacity
and receiving proper compensation therefor.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.01 Execution of Contracts. The Board, except as in these Bylaws
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otherwise provided, may authorize any officer or officers, agent or agents, to
enter into any contract or execute any instrument in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific
instances; and unless so authorized by the Board or by these Bylaws, 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 in any amount.
5.02 Checks, Drafts, Etc. All checks, drafts or other orders for payment
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of money, notes or other evidence of indebtedness, issued in the name of or
payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board. Each such officer, assistant, agent or attorney shall
give such bond, if any, as the Board may require.
5.03 Deposits. All funds of the Corporation not otherwise employed shall
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be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board may select, or as may be
selected by any officer or officers, assistant or assistants, agent or agents,
or attorney or attorneys of the Corporation to whom such power shall have been
delegated by the Board. For the purpose of deposit and for the purpose of
collection for the account of the Corporation, the Chief Executive Officer, the
President, any Vice President or the Chief Financial Officer (or any other
officer or officers,
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assistant or assistants, agent or agents, or attorney or attorneys of the
Corporation who shall from time to time be determined by the Board) may endorse,
assign and deliver checks, drafts and other orders for the payment of money
which are payable to the order of the Corporation.
5.04 General and Special Bank Accounts. The Board may from time to time
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authorize the opening and keeping of general and special bank accounts with such
banks, trust companies or other depositories as the Board may select or as may
be selected by any officer or officers, assistant or assistants, agent or
agents, or attorney or attorneys of the Corporation to whom such power shall
have been delegated by the Board. The Board may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these Bylaws, as it may deem expedient.
ARTICLE VI
SHARES AND THEIR TRANSFER
6.01 Certificates for Stock. Every owner of stock of the Corporation
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shall be entitled to have a certificate or certificates, to be in such form as
the Board shall prescribe, certifying the number and class of shares of the
stock of the Corporation owned by him. The certificates representing shares of
such stock shall be numbered in the order in which they shall be issued and
shall be signed in the name of the Corporation by the Chairman of the Board, the
President or a Vice President, and by the Secretary or an Assistant Secretary or
by the Chief Financial Officer or the Treasurer or an Assistant Treasurer. Any
of or all of the signatures on the certificates may be a facsimile. In case any
officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed upon, any such certificate, shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued,
such certificate may nevertheless be issued by the Corporation with the same
effect as though the person who signed such certificate, or whose facsimile
signature shall have been placed thereupon, were such officer, transfer agent or
registrar at the date of issue. A record shall be kept of the respective names
of the persons, firms or corporations owning the stock represented by such
certificates, the number and class of shares represented by such certificates,
respectively, and the respective dates thereof, and in case of cancellation, the
respective dates of cancellation. Every certificate surrendered to the
Corporation for exchange or transfer shall be cancelled, and no new certificate
or certificates shall be issued in exchange for any existing certificate until
such existing certificate shall have been so cancelled, except in cases provided
for in Section 6.04.
6.02 Transfers of Stock. Transfers of shares of stock of the Corporation
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shall be made only on the books of the Corporation by the registered holder
thereof, or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary, or with a transfer clerk or a transfer
agent appointed as provided in Section 6.03, and upon surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation. Whenever any transfer of shares shall be made for collateral
security, and not absolutely, such fact shall be so expressed in the entry of
transfer if, when the certificate or certificates shall be presented to
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the Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
6.03 Regulations. The Board may make such rules and regulations as it
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may deem expedient, not inconsistent with these Bylaws, concerning the issue,
transfer and registration of certificates for shares of the stock of the
Corporation. It may appoint, or authorize any officer or officers to appoint,
one or more transfer clerks or one or more transfer agents and one or more
registrars, and may require all certificates for stock to bear the signature or
signatures of any of them.
6.04 Lost, Stolen, Destroyed, and Mutilated Certificates. In any case of
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loss, theft, destruction, or mutilation of any certificate of stock, another may
be issued in its place upon proof of such loss, theft, destruction, or
mutilation and upon the giving of a bond of indemnity to the Corporation in such
form and in such sum as the Board may direct; provided, however, that a new
certificate may be issued without requiring any bond when, in the judgment of
the Board, it is proper so to do.
6.05 Fixing Date for Determination of Stockholders of Record. In order
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that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any other change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board may
fix, in advance, a record date, which shall not be more than 60 nor less than 10
days before the date of such meeting, nor more than 60 days prior to any other
action. If in any case involving the determination of stockholders for any
purpose other than notice of or voting at a meeting of stockholders or
expressing consent to corporate action without a meeting the Board shall not fix
such a record date, the record date for determining stockholders for such
purpose shall be the close of business on the day on which the Board shall adopt
the resolution relating thereto. A determination of stockholders entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of such meeting; provided, however, that the Board may fix a new record date for
the adjourned meeting.
6.06 Restrictions on Transfer.
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(a) Notwithstanding Section 6.02, (i) all of the shares of
Corporation's common stock, par value $0.001 (the "Common Stock"), outstanding
immediately prior to the time at which the Corporation shall have a class of
stock registered pursuant to the provisions of the 1934 Act (the "Effective
Date") and (ii) any shares of the Common Stock issued after the Effective Date
pursuant to options and warrants of the Corporation outstanding immediately
prior to the Effective Date, may not be offered, sold, pledged or otherwise
disposed of, directly or indirectly, nor may the holders of such shares publicly
disclose the intention to make any such offer, sale pledge or disposal, for up
to 180 days after the Effective Date without the prior written consent of Virata
Corporation, except to a transferee permitted (a "Permitted Transferee") under
Sub-section (b) of this Section 6.06, provided that any such Permitted
Transferee shall agree in writing to be bound by the provisions of this Section
6.06.
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(b) For purposes of this Section 6.06, a Permitted Transferee shall
mean: (i) the spouse or child of a transferor; (ii) a trust for the sole benefit
of a transferor or a transferor's spouse or child, if the transferor is an
individual; (iii) the estate of a deceased transferor; (iv) a partner, general
partner, limited partner or retired partner of a transferor that is a
partnership; (v) an entity controlled by, controlling or under common control
with a transferor that is not an individual; or (vi) the Corporation or any of
its subsidiaries.
(c) A legend denoting the transfer restrictions set forth in this
Section 6.06 substantially similar to the following form will be stamped or
otherwise imprinted on the certificates representing such shares:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, OFFERED, SOLD, PLEDGED OR OTHERWISE DISPOSED OF, DIRECTLY OR
INDIRECTLY, NOR MAY THE HOLDERS OF THE SHARES PUBLICLY DISCLOSE THE
INTENTION TO MAKE ANY SUCH OFFER, SALE PLEDGE OR DISPOSAL, FOR UP TO 180
DAYS AFTER THE EFFECTIVE DATE OF THE CORPORATION'S REGISTRATION STATEMENT
ON FORM 8-A, WHICH WAS FILED WITH THE U.S. SECURITIES AND EXCHANGE
COMMISSION ON NOVEMBER 17, 1999, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
CORPORATION, EXCEPT TO A TRANSFEREE PERMITTED UNDER SECTION 6.06 OF THE
CORPORATION'S BYLAWS. NO TRANSFEREE WHO RECEIVES THE SHARES REPRESENTED BY
THIS CERTIFICATE IN CONNECTION WITH A TRANSFER THAT DOES NOT MEET THE
QUALIFICATIONS PRESCRIBED IN SECTION 6.06 OF THE CORPORATION'S BYLAWS IS
ENTITLED TO OWN OR TO BE REGISTERED AS THE RECORD HOLDER OF THE SHARES OF
COMMON STOCK REPRESENTED BY THIS CERTIFICATE."
(d) In furtherance of the foregoing, the Corporation and its transfer
agent and registrar, if any, will not make any transfer of the Corporation's
Common Stock if such a transfer would constitute a violation or breach of this
Section 6.06.
ARTICLE VII
INDEMNIFICATION
7.01 Action, Etc. Other Than by or in the Right of the Corporation. The
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Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, had
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no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
7.02 Actions, Etc., by or in the Right of the Corporation. The
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Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
7.03 Determination of Right of Indemnification. Unless otherwise ordered
------------------------------------------
by a court of competent jurisdiction, any indemnification under Sections 7.01 or
7.02 of this Article VII shall be made by the Corporation to 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, unless a determination is reasonably and promptly made, either (i)
by the Board of Directors acting by a majority vote of a quorum consisting of
directors who were not a party to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, if obtainable, such quorum so directs, by
independent legal counsel in a written opinion, or (iii) by the stockholders,
that such person acted in bad faith and in a manner that such person did not
believe to be in or not opposed to the best interests of the Corporation or,
with respect to any criminal proceeding, that such person believed or had
reasonable cause to believe, that his or her conduct was unlawful.
7.04 Indemnification Against Expenses of Successful Party.
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Notwithstanding the other provisions of this Article, to the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Section 7.01 or 7.02, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
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7.05 Prepaid Expenses. Expenses incurred by an officer or director in
-----------------
defending a civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board in the specific case upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount
unless it shall ultimately be determined that he is entitled to be indemnified
by the Corporation as authorized in this Article. Such expenses incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the Board deems appropriate.
7.06 Other Rights and Remedies. The indemnification provided by this
--------------------------
Article shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall 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.
7.07 Insurance. Upon resolution passed by the Board, the Corporation may
----------
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was 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 him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article.
7.08 Constituent Corporations. For the purposes of this Article,
-------------------------
references to "the Corporation" include all constituent corporations absorbed in
a consolidation or merger as well as the resulting or surviving corporation, so
that any person who is or was a director, officer, employee or agent of such a
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 the provisions of this Article with respect to the resulting or
surviving corporation as he would if he had served the resulting or surviving
corporation in the same capacity.
7.09 Other Enterprises, Fines, and Serving at Corporation's Request. For
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purposes of this Article, references to "other enterprises" shall include
employee benefit plans; references to "fines" shall include any excise taxes
assessed on a person with respect to any 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 believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article.
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ARTICLE VIII
MISCELLANEOUS
8.01 Seal. The Board may provide a corporate seal, which shall be in the
-----
form of a circle and shall bear the name of the Corporation and words and
figures showing that the Corporation was incorporated in the State of Delaware
and the year of incorporation.
8.02 Waiver of Notices. Whenever notice is required to be given by these
------------------
Bylaws or the Certificate of Incorporation or by law, the person entitled to
said notice may waive such notice in writing, either before or after the time
stated therein, and such waiver shall be deemed equivalent to notice.
8.03 Amendments. These Bylaws, or any of them, may be altered, amended
-----------
or repealed, and new Bylaws may be made, (i) by the Board, by vote of a majority
of the number of directors then in office as directors, acting at any meeting of
the Board, or (ii) by the stockholders, by a vote of a majority of the shares
entitled to vote thereon, provided that notice of such proposed amendment,
modification, repeal or adoption is given in the notice of the stockholders'
meeting. Any Bylaws made or altered by the stockholders may be altered or
repealed by either the Board or the stockholders. Notwithstanding the
foregoing, the affirmative vote of 80% of the total number of the then
outstanding shares of capital stock of this Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required to amend or repeal, or adopt any provision inconsistent with the
purpose or intent of, the following sections of these Bylaws: Sections 2.02
(Special Meeting), 2.09 (Action without Meeting), 2.10 (Advance Notice of
Stockholder Business), 2.11 (Advance Notice of Stockholder Nominees), 3.12
(Removal of Directors) and 8.03 (Amendments).
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