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EXHIBIT 3.2
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AMENDED AND RESTATED
BYLAWS
OF
AIRSPAN NETWORKS INC.
<PAGE>
TABLE OF CONTENTS
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ARTICLE I SHAREHOLDERS.............................................. 1
1.1 Annual Meeting............................................... 1
1.1.1 Time and Place of Meeting............................. 1
1.1.2 Business Conducted at Meeting......................... 1
1.2 Special Meetings............................................. 2
1.3 Notice of Meetings........................................... 2
1.3.1 Notice of Special Meeting............................. 3
1.3.2 Proposed Articles of Amendment, Merger, Exchange, Sale
Lease or Disposition.................................. 3
1.3.3 Proposed Dissolution.................................. 3
1.3.4 Declaration of Mailing................................ 3
1.3.5 Waiver of Notice...................................... 3
1.4 Quorum; Vote Requirement..................................... 4
1.5 Adjourned Meetings........................................... 4
1.6 Fixing Record Date........................................... 4
1.7 Shareholders' List for Meeting............................... 5
1.8 Ratification................................................. 5
1.9 Telephonic Meetings.......................................... 5
1.10 Action By Less than Unanimous Consent........................ 5
ARTICLE II BOARD OF DIRECTORS........................................ 6
2.1 Responsibility of Board of Directors......................... 6
2.2 Number of Directors; Qualification........................... 6
2.3 Vacancies.................................................... 6
2.4 Removal...................................................... 7
2.5 Resignation.................................................. 7
2.6 Annual Meeting............................................... 7
2.7 Regular Meetings............................................. 7
2.8 Special Meetings............................................. 7
2.9 Notice of Meeting............................................ 7
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TABLE OF CONTENTS
(continued)
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2.10 Quorum of Directors......................................... 8
2.11 Dissent by Directors........................................ 9
2.12 Action by Directors Without a Meeting....................... 9
2.13 Telephonic Meetings......................................... 9
2.14 Compensation................................................ 9
2.15 Committees.................................................. 9
ARTICLE III OFFICERS................................................. 10
3.1 Appointment................................................. 10
3.2 Qualification............................................... 10
3.3 Officers Enumerated......................................... 10
3.3.1 Chairman of the Board................................ 10
3.3.2 President............................................ 11
3.3.3 Vice Presidents...................................... 11
3.3.4 Secretary............................................ 11
3.3.5 Treasurer............................................ 12
3.4 Delegation.................................................. 12
3.5 Resignation................................................. 13
3.6 Removal..................................................... 13
3.7 Vacancies................................................... 13
3.8 Other Officers and Agents................................... 13
3.9 Compensation................................................ 13
ARTICLE IV CONTRACTS, CHECKS AND DRAFTS............................. 13
4.1 Contracts................................................... 13
4.2 Checks, Drafts, Etc......................................... 14
4.3 Deposits.................................................... 14
ARTICLE V STOCK.................................................... 14
5.1 Issuance of Shares.......................................... 14
5.2 Certificates of Stock....................................... 14
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5.3 Stock Records............................................. 15
5.4 Restrictions on Transfer.................................. 15
5.5 Transfers................................................. 16
ARTICLE VI RECORDS OF CORPORATE MEETINGS.......................... 16
ARTICLE VII FINANCIAL MATTERS...................................... 17
ARTICLE VIII DISTRIBUTIONS.......................................... 17
ARTICLE IX CORPORATE SEAL......................................... 17
ARTICLE X MISCELLANY............................................. 17
10.1 Communications by Facsimile............................... 17
10.2 Inspector of Elections.................................... 18
10.3 Rules of Order............................................ 18
10.4 Construction.............................................. 19
10.5 Severability.............................................. 19
ARTICLE XI AMENDMENT OF BYLAWS.................................... 19
ARTICLE XII AUTHENTICATION......................................... 19
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Table of Contents/Authorities.
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AMENDED AND RESTATED
BYLAWS OF
AIRSPAN NETWORKS INC.
These Amended and Restated Bylaws are promulgated pursuant to the
Washington Business Corporation Act, as set forth in Title 23B of the Revised
Code of Washington (the "Act").
ARTICLE I
SHAREHOLDERS
------------
1.1 Annual Meeting.
--------------
1.1.1 Time and Place of Meeting. The annual meeting of the
-------------------------
shareholders of the corporation for the election of Directors and for the
transaction of such other business as may properly come before the meeting shall
be held each year at a place, day, and time to be set by the Board of Directors.
1.1.2 Business Conducted at Meeting.
-----------------------------
(a) At an annual meeting of shareholders, an item of business
may be conducted, and a proposal may be considered and acted upon, only if such
item or proposal is brought before the meeting (i) by, or at the direction of,
the Board of directors, or (ii) by any shareholder of the corporation who is
entitled to vote at the meeting and who complies with the procedures set forth
in the remainder of this Section 1.1.2. This Section 1.1.2 shall not apply to
matters of procedure that, pursuant to Section 10.3(a) of these Bylaws, are
subject to the authority of the chairman of the meeting.
(b) For an item of business or proposal to be brought before an
annual meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
shareholder's notice must be delivered to, or mailed and received by the
Secretary not fewer than sixty (60) days nor more than ninety (90) days prior to
the date determined pursuant to Section 1.1.1 for such annual meeting (or if
less than sixty (60) days notice of the date of the annual meeting is given or
made to the shareholders, not later than the tenth day following the day on
which the notice of the date of the annual meeting was mailed.) Any shareholder
notice shall set forth (i) the name and address of the shareholder at proposing
such business; (ii) a representation that the shareholder is entitled to vote at
such meeting and a statement of the number of shares of the corporation which
are beneficially owned by the shareholder; (iii) a representation that the
shareholder intends to appear in person or by proxy at the meeting to propose
such business; and (iv) as to
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each matter the shareholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting, the language of the
proposal (if appropriate), and any material interest of the shareholder in such
business. No business shall be conducted at any annual meeting of shareholders
except in accordance with this Section 1.1.2(b). If the facts warrant, the Board
of Directors, or the chairman of the annual meeting of shareholders, may declare
that business was not properly brought before the meeting in accordance with the
provisions of this Section 1.1.2(b) and, if it is so determined, any such
business not properly brought before the meeting shall not be transacted. The
procedures set forth in this Section 1.1.2(b) for business to be properly
brought before an annual meeting by a shareholder are in addition to, and not in
lieu of, the requirements set forth in Rule 14a-8 promulgated under Section 14
of the Securities Exchange Act of 1934, or any successor provision.
(c) Business at Special Meetings. At any special meeting of
----------------------------
the shareholders, only such business as is specified in the notice of such
special meeting given by or at the direction of the person or persons calling
such meeting, in accordance with Section 1.2, shall come before such meeting.
(d) Notice to Corporation. Any written notice required to be
---------------------
delivered by a shareholder to the corporation pursuant to Section 1.1.2 must be
given, either by personal delivery or by registered or certified mail, postage
prepaid, to the Secretary at the corporation's principal executive office.
1.2 Special Meetings. Special meetings of the shareholders for any
----------------
purpose or purposes may be called at any time by the Board of Directors, the
President or the Secretary or by one or more shareholders holding not less than
twenty-five percent (25%) of all the shares entitled to be cast on any issue
proposed to be considered at that meeting, to be held at such time and place as
the Board or the Chairman (if one be appointed) or the President may prescribe.
1.3 Notice of Meetings. Except as otherwise provided below, the
------------------
Secretary, Assistant Secretary, or any transfer agent of the corporation shall
give, in any manner permitted by law, not less than ten (10) nor more than sixty
(60) days before the date of any meeting of shareholders, written notice stating
the place, day, and time of the meeting to each shareholder of record entitled
to vote at such meeting. If mailed, notice to a shareholder shall be effective
when mailed, with first-class postage thereon prepaid, correctly addressed to
the shareholder at the shareholder's address as it appears on the current record
of shareholders of the corporation. Otherwise, written notice shall be effective
at the earliest of the following: (a) when received, (b) five (5) days after its
deposit in the United States mail, as evidenced by the postmark, if mailed with
first-class postage, prepaid, and correctly addressed, or (c) on the date shown
on the return receipt, if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the addressee.
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1.3.1 Notice of Special Meeting. In the case of a special meeting, the
-------------------------
written notice shall also state with reasonable clarity the purpose or purposes
for which the meeting is called and the general nature of the business proposed
to be transacted at the meeting. No business other than that within the purpose
or purposes specified in the notice may be transacted at a special meeting.
1.3.2 Proposed Articles of Amendment, Merger, Exchange, Sale, Lease or
----------------------------------------------------------------
Disposition. If the business to be conducted at any meeting includes any
-----------
proposed amendment to the Articles of Incorporation or any proposed merger or
exchange of shares, or any proposed sale, lease, exchange, or other disposition
of all or substantially all of the property and assets (with or without the
goodwill) of the corporation not in the usual or regular course of its business,
then the written notice shall state that the purpose or one of the purposes is
to consider the proposed amendment or plan of merger, exchange of shares, sale,
lease, exchange, or other disposition, as the case may be, shall describe the
proposed action with reasonable clarity, and shall be accompanied by a copy of
the proposed amendment or plan. Written notice of such meeting shall be given to
each shareholder of record, whether or not entitled to vote at such meeting, not
less than twenty (20) days before such meeting, in the manner provided in
Section 1.3 above.
1.3.3 Proposed Dissolution. If the business to be conducted at any
--------------------
meeting includes the proposed voluntary dissolution of the corporation, then the
written notice shall state that the purpose or one of the purposes is to
consider the advisability thereof. Written notice of such meeting shall be given
to each shareholder of record, whether or not entitled to vote at such meeting,
not less than twenty (20) days before such meeting, in the manner provided in
Section 1.3 above.
1.3.4 Declaration of Mailing. A declaration of the mailing or other
----------------------
means of giving any notice of any shareholders' meeting, executed by the
Secretary, Assistant Secretary, or any transfer or other agent of the
corporation giving the notice, shall be prima facie evidence of the giving of
such notice.
1.3.5 Waiver of Notice. A shareholder may waive notice of any meeting
----------------
at any time, either before or after such meeting. Except as provided below, the
waiver must be in writing, be signed by the shareholder entitled to the notice,
and be delivered to the corporation for inclusion in the minutes or filing with
the corporate records. A shareholder's attendance at a meeting in person or by
proxy waives objection to lack of notice or defective notice of the meeting
unless the shareholder at the beginning of the meeting objects to holding the
meeting or transacting business at the meeting on the ground that the meeting is
not lawfully called or convened. In the case of a special meeting, or an annual
meeting at which fundamental corporate changes are considered, a shareholder
waives objection to consideration of a particular matter that is not within the
purpose or purposes described in the meeting notice unless the shareholder
objects to considering the matter when it is presented.
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1.4 Quorum; Vote Requirement. A quorum shall exist at any meeting of
------------------------
shareholders if a majority of the votes entitled to be cast is represented in
person or by proxy. Once a share is represented for any purpose at a meeting
other than solely to object to holding the meeting or transacting business at
the meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is or
must be set for that adjourned meeting. Subject to the foregoing, the
determination of the voting groups entitled to vote (as required by law), and
the quorum and voting requirements applicable thereto, must be made separately
for each matter being considered at a meeting. In the case of any meeting of
shareholders that is adjourned more than once because of the failure of a quorum
to attend, those who attend the third convening of such meeting, although less
than a quorum, shall nevertheless constitute a quorum for the purpose of
electing directors, provided that the percentage of shares represented at the
third convening of such meeting shall not be less than one-third of the shares
entitled to vote.
If a quorum exists, action on a matter (other than the election of
directors) is approved by a voting group if the votes cast within the voting
group favoring the action exceed the votes cast within the voting group opposing
the action unless a greater number of affirmative votes is required by law or by
the Articles of Incorporation.
1.5 Adjourned Meetings. An adjournment or adjournments of any
------------------
shareholders' meeting, whether by reason of the failure of a quorum to attend or
otherwise, may be taken to such date, time, and place as the chairman of the
meeting may determine without new notice being given if the date, time, and
place are announced at the meeting at which the adjournment is taken. However,
if the adjournment is for more than thirty (30) days from the date set for the
original meeting, a new record date for the adjourned meeting shall be fixed and
a new notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the adjourned meeting, in accordance with the
provisions of Section 1.3 of these Bylaws. At any adjourned meeting, the
corporation may transact any business which might have been transacted at the
original meeting. Any meeting at which directors are to be elected shall be
adjourned only from day to day until such directors are elected.
1.6 Fixing Record Date. For the purpose of determining shareholders
------------------
entitled to notice of or to vote at any meeting of shareholders (or, subject to
Section 1.5 above, any adjournment thereof), the Board of Directors may fix in
advance a date as the record date for any such determination of shareholders,
such date in any case to be not more than seventy (70) days prior to the
meeting. If no such record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, then the day
before the first notice is delivered to shareholders shall be the record date
for such determination of shareholders. If no notice is given because all
shareholders entitled to notice have waived notice, then the record date for the
determination of shareholders entitled to notice of or to vote at a meeting
shall be the date on which the last such waiver of notice was obtained. When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as
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provided in this section, such determination shall apply to any adjournment
thereof, except as provided in Section 1.5 of these Bylaws. If no notice is
given because shareholders holding of record or otherwise entitled to vote in
the aggregate not less than the minimum number of votes necessary in order to
take such action by written consent have signed a consent, the record date for
determining shareholders entitled to take action without a meeting is the date
the first shareholder signs the consent.
1.7 Shareholders' List for Meeting. The corporation shall cause to be
------------------------------
prepared an alphabetical list of the names of all of its shareholders on the
record date who are entitled to notice of a shareholders' meeting or any
adjournment thereof. The list must be arranged by voting group (and within each
voting group by class or series of shares) and show the address of and the
number of shares held by each shareholder. The shareholders' list must be
available for inspection by any shareholder, beginning ten (10) days prior to
the meeting and continuing through the meeting, at the principal office of the
corporation or at a place identified in the meeting notice in the city where the
meeting will be held. Such list shall be produced and kept open at the time and
place of the meeting. During such ten-day period, and during the whole time of
the meeting, the shareholders' list shall be subject to the inspection of any
shareholder, or the shareholder's agent or attorney. In cases where the record
date is fewer than ten (10) days prior to the meeting because notice has been
waived by all shareholders, the Secretary shall keep such record available for a
period from the date the first waiver of notice was delivered to the date of the
meeting. Failure to comply with the requirements of this section shall not
affect the validity of any action taken at the meeting.
1.8 Ratification. Subject to the requirements of RCW 23B.08.730 and
------------
23B.19.040, any contract, transaction, or act of the corporation or of any
director or officer of the corporation that shall be authorized, approved, or
ratified by the affirmative vote of a majority of shares represented at a
meeting at which a quorum is present shall, insofar as permitted by law, be as
valid and as binding as though ratified by every shareholder of the corporation.
1.9 Telephonic Meetings. Shareholders may participate in a meeting by any
-------------------
means of communication by which all persons participating in the meeting can
hear each other during the meeting, and participation by such means shall
constitute presence in person at a meeting.
1.10 Action By Less than Unanimous Consent. To the extent permitted by the
-------------------------------------
Act, the taking of action by shareholders without a meeting by less than
unanimous written consent of all shareholders entitled to vote on the action
shall be permitted. Notice of the taking of such action shall be given to those
shareholders entitled to vote on the action who have not consented in writing
(and, if the Act would otherwise require that notice of a meeting of
shareholders to consider the action be given to nonvoting shareholders, to all
nonvoting shareholders), in writing, describing with reasonable clarity the
general nature of the action, and accompanied by the same material that, under
the Act, would have been required to be sent to nonconsenting (or nonvoting)
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shareholders in a notice of meeting at which the action would have been
submitted for shareholder action. Such notice shall be either (i) by deposit in
the U.S. mail before the action becomes effective, with first-class postage
thereon prepaid, correctly addressed to each shareholder entitled thereto at the
shareholder's address as it appears on the current record of shareholders of the
Corporation; or (ii) by personal delivery, courier service, wire or wireless
equipment, telegraphic or other facsimile transmission, or any other electronic
means which transmits a facsimile of such communication correctly addressed to
each shareholder entitled thereto at the shareholder's physical address,
electronic mail address, or facsimile number, as it appears on the current
record of shareholders of the Corporation. Notice under clause (i) shall be
given at least seventy-two (72) hours, and notice under clause (ii) shall be
given at least twenty-four (24) hours before the action becomes effective.
ARTICLE II
BOARD OF DIRECTORS
------------------
2.1 Responsibility of Board of Directors. The business and affairs and
------------------------------------
property of the corporation shall be managed under the direction of a Board of
Directors. A director shall discharge the duties of a director, including duties
as a member of a committee, in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar circumstances, and in a
manner the director reasonably believes to be in the best interests of the
corporation.
2.2 Number of Directors; Qualification. The Board shall consist of five
----------------------------------
(5) to eight (8) directors. The exact number of directors of the corporation
shall be five (5) until amended in accordance with these Bylaws. No reduction of
the authorized number of directors shall have the effect of removing any
director before that director's term of office expires. If a greater or lesser
number of directors than is specified as the range of the size of the Board in
this section is elected by the shareholders, then election of that number shall
automatically be deemed to constitute an amendment to these Bylaws. No director
need be a shareholder of the corporation or a resident of Washington. Each
director must be at least eighteen (18) years of age.
2.3 Vacancies. Except as otherwise provided by law, any vacancy occurring
---------
in the Board of Directors (whether caused by resignation, death, or otherwise)
may be filled by the affirmative vote of a majority of the directors present at
a meeting of the Board at which a quorum is present, or, if the directors in
office constitute less than a quorum, by the affirmative vote of a majority of
all of the directors in office. Notice shall be given to all of the remaining
directors that such vacancy will be filled at the meeting. However, if the
vacant office was held by a director elected by a voting group composed of less
than all of the voting shareholders, then the Board of Directors shall not have
the power to fill such vacancy. A director elected to fill any vacancy shall
hold office until the next meeting of shareholders at which directors are
elected, and until his or her successor shall have been elected and qualified.
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2.4 Removal. One or more members of the Board of Directors (including the
-------
entire Board) may be removed, with or without cause, at a special meeting of
shareholders called expressly for that purpose. A director (or the entire Board)
may be removed if the number of votes cast in favor of removing such director
(or the entire Board) exceeds the number of votes cast against removal; provided
that, if a director (or the entire Board) has been elected by one or more voting
groups, only those voting groups may participate in the vote as to removal.
However, if the Articles of Incorporation grant shareholders the right to
cumulate their votes in the election of directors, a director may not be removed
if a number of votes sufficient to elect such director under cumulative voting
(computed on the basis of the number of votes actually cast at the meeting on
the question of removal) is cast against such director's removal.
2.5 Resignation. A director may resign at any time by delivering written
-----------
notice to the Board of Directors, its Chairman, the President, or the Secretary.
A resignation is effective when the notice is delivered unless the notice
specifies a later effective date.
2.6 Annual Meeting. The first meeting of each newly elected Board of
--------------
Directors shall be known as the annual meeting thereof and shall be held without
notice immediately after the annual shareholders' meeting or any special
shareholders' meeting at which a Board is elected. Such meeting shall be held at
the same place as such shareholders' meeting unless some other place shall be
specified by resolution of the shareholders.
2.7 Regular Meetings. Regular meetings of the Board of Directors may be
----------------
held at such place, day, and time as shall from time to time be fixed by
resolution of the Board without notice other than the delivery of such
resolution as provided in Section 2.10 below.
2.8 Special Meetings. Special meetings of the Board of Directors may be
----------------
called by the President or the Chairman of the Board (if one be appointed) or
any two or more directors, to be held at such place, day, and time as specified
by the person or persons calling the meeting.
2.9 Notice of Meeting. Notice of the place, day, and time of any meeting
-----------------
of the Board of Directors for which notice is required shall be given, at least
two (2) days preceding the day on which the meeting is to be held, by the
Secretary or an Assistant Secretary, or by the person calling the meeting, in
any manner permitted by law, including orally. Any oral notice given by
personal communication over the telephone or otherwise 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. Notice shall be deemed to have been given on the earliest of (a)
the day of actual receipt, (b) five (5) days after the day on which written
notice is deposited in the United States mail, as evidenced by the postmark,
with first-class postage prepaid, and correctly addressed, or (c) on the date
shown on the return
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receipt, if sent by registered or certified mail, return receipt requested, and
the receipt is signed by or on behalf of the addressee.
No notice of any regular meeting need be given if the place, day, and time
thereof have been fixed by resolution of the Board of Directors and a copy of
such resolution has been given to each director, either by personally delivering
the copy to the director at least two (2) days, or by depositing the copy in the
United States mail with first class postage prepaid and correctly addressed to
the director at the director's address as it appears on the records of the
corporation at least five (5) days (as evidenced by the postmark), prior to the
day of the first meeting held in pursuance thereof.
Notice of a meeting of the Board of Directors need not be given to any
director if it is waived by the director in writing, whether before or after
such meeting is held. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting unless required by law, the
Articles of Incorporation, or these Bylaws.
A director's attendance at or participation in a meeting shall constitute a
waiver of notice of such meeting except when a director attends or participates
in a meeting for the express purpose of objecting on legal grounds prior to or
at the beginning of the meeting (or promptly upon the director's arrival) to the
holding of the meeting or the transaction of any business and does not
thereafter vote for or assent to action taken at the meeting. Any meeting of the
Board of Directors shall be a legal meeting without any notice thereof having
been given if all of the directors have received valid notice thereof, are
present without objecting, or waive notice thereof, or any combination thereof.
2.10 Quorum of Directors. Except in particular situations where a lesser
-------------------
number is expressly permitted by law, and unless a greater number is required by
the Articles of Incorporation, a majority of the number of directors specified
in or fixed in accordance with these Bylaws shall constitute a quorum for the
transaction of business, and the affirmative vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors. If the number of directors in office at any time is less than the
number specified in or fixed in accordance with these Bylaws, then a quorum
shall consist of a majority of the number of directors in office; provided that
in no event shall a quorum consist of fewer than one-third of the number
specified in or fixed in accordance with these Bylaws.
Directors at a meeting of the Board of Directors at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, provided such withdrawal does not reduce the number of
directors attending the meeting below the level of a quorum.
A majority of the directors present, whether or not constituting a quorum,
may adjourn any meeting of the Board of Directors to another time and place. If
the meeting
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is adjourned for more than forty-eight (48) 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 2.10 of these Bylaws, to the directors
who were not present at the time of the adjournment.
2.11 Dissent by Directors. Any director who is present at any meeting of
--------------------
the Board of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless the director objects at the
beginning of the meeting (or promptly upon the director's arrival) to the
holding of, or the transaction of business at, the meeting; or unless the
director's dissent or abstention shall be entered in the minutes of the meeting;
or unless the director delivers written notice of the director's dissent or
abstention to the presiding officer of the meeting before the adjournment
thereof or to the corporation within a reasonable time after the adjournment of
the meeting. Such right to dissent or abstention shall not be available to any
director who votes in favor of such action.
2.12 Action by Directors Without a Meeting. Any action required by law to
-------------------------------------
be taken or which may be taken at a meeting of the Board of Directors may be
taken without a meeting if one or more consents in writing, setting forth the
action so taken, shall be signed either before or after the action so taken by
all of the directors and delivered to the corporation for inclusion in the
minutes or filing with the corporate records. Such consent shall have the same
effect as a meeting vote. Action taken under this section is effective when the
last director signs the consent, unless the consent specifies a later effective
date.
2.13 Telephonic Meetings. Except as may be otherwise restricted by the
-------------------
Articles of Incorporation, members of the Board of Directors may participate in
a meeting of the Board by any means of communication by which all directors
participating in the meeting may simultaneously hear each other during the
meeting. Participation by such means shall constitute presence in person at a
meeting.
2.14 Compensation. By resolution of the Board of Directors, the directors
------------
may be paid their expenses, if any, and may be paid a fixed sum or a stated
salary as a director, for attendance at each meeting of the Board. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
2.15 Committees. The Board of Directors, by resolution adopted by the
----------
greater of (a) a majority of all of the directors in office, or (b) the number
of directors required by the Articles of Incorporation or these Bylaws to take
action may from time to time create, and appoint individuals to, one or more
committees, each of which must have at least two (2) members. If a committee is
formed for the purpose of exercising functions of the Board, the committee must
consist solely of directors. If the only function of a committee is to study and
make recommendations for action by the full Board, the committee need not
consist of directors. Committees of directors may exercise the
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authority of the Board of Directors to the extent specified by such resolution
or in the Articles of Incorporation or these Bylaws. However, no committee
shall:
(a) authorize or approve a distribution (as defined in RCW 23B.01.400)
except according to a general formula or method prescribed by the Board of
Directors;
(b) approve or propose to shareholders action that by law is required
to be approved by shareholders;
(c) fill vacancies on the Board of Directors or on any of its
committees;
(d) amend the Articles of Incorporation;
(e) adopt, amend, or repeal Bylaws;
(f) approve a plan of merger not requiring shareholder approval; or
(g) authorize or approve the issuance or sale or contract for sale of
shares, or determine the designation and relative rights, preferences, and
limitations of a class or series of shares, except that the Board of Directors
may authorize a committee of directors (or a senior executive officer of the
corporation) to do so within limits specifically prescribed by the Board of
Directors.
Committees shall be governed by the same provisions as govern the meetings,
actions without meetings, notice and waiver of notice, quorum and voting
requirements, and standards of conduct of the Board of Directors. The Executive
Committee (if one be established) shall meet periodically between meetings of
the full Board. All committees shall keep regular minutes of their meetings and
shall cause them to be recorded in books kept for that purpose at the office of
the corporation.
ARTICLE III
OFFICERS
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3.1 Appointment. The officers of the corporation shall be appointed
-----------
annually by the Board of Directors at its annual meeting held after the annual
meeting of the shareholders. If the appointment of officers is not held at such
meeting, such appointment shall be held as soon thereafter as a Board meeting
conveniently may be held. Except in the case of death, resignation, or removal,
each officer shall hold office until the next annual meeting of the Board and
until his or her successor is appointed and qualified.
3.2 Qualification. None of the officers of the corporation need be a
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director, except as specified below. Any two or more of the corporate offices
may be held by the same person.
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3.3 Officers Enumerated. Except as otherwise provided by resolution of
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the Board of Directors, the officers of the corporation and their respective
powers and duties shall be as follows:
3.3.1 Chairman of the Board. The Chairman of the Board (if such an
---------------------
officer be appointed) shall be a director and shall perform such duties as shall
be assigned to him or her by the Board of Directors and in any employment
agreement. The Chairman shall preside at all meetings of the shareholders and at
all meetings of the Board at which he or she is present. The Chairman may sign
deeds, mortgages, bonds, contracts, and other instruments, except when the
signing thereof has been expressly delegated by the Board or by these Bylaws to
some other officer or agent of the corporation or is otherwise required by law
to be signed by some other officer or in some other manner. If the President
dies or becomes unable to act, the Chairman shall perform the duties of the
President, except as may be limited by resolution of the Board of Directors,
with all the powers of and subject to all the restrictions upon the President.
3.3.2 President. Subject to such supervisory powers as may be given
---------
by the Board of Directors to the Chairman of the Board (if such an officer be
appointed), the President shall be the chief executive officer of the
corporation unless some other officer is so designated by the Board and, subject
to the control of the Board and the Executive Committee (if one be established),
shall supervise and control all of the assets, business, and affairs of the
corporation. The President may sign certificates for shares of the corporation,
deeds, mortgages, bonds, contracts, and other instruments, except when the
signing thereof has been expressly delegated by the Board or by these Bylaws to
some other officer or agent of the corporation or is otherwise required by law
to be signed by some other officer or in some other manner. The President shall
vote the shares owned by the corporation in other corporations, domestic or
foreign, unless otherwise prescribed by law or resolution of the Board. In
general, the President shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board from time to
time. In the absence of the Chairman of the Board, the President, if a director,
shall preside over all meetings of the shareholders and over all meetings of the
Board of Directors. The President shall have the authority to appoint one or
more Assistant Secretaries and Assistant Treasurers, as he or she deems
necessary.
3.3.3 Vice Presidents. If no Chairman of the Board has been
---------------
appointed, 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 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; provided that no such Vice President
shall assume the authority to preside as Chairman of meetings of the Board
unless such Vice President is a member of the Board. The Vice Presidents shall
have such other powers and perform such other duties as from time to time may be
respectively prescribed for them by the Board, these Bylaws, the President, or
the Chairman of the Board (if one be appointed).
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3.3.4 Secretary. The Secretary shall:
---------
(a) have responsibility for preparing minutes of meetings of
the shareholders and the Board of Directors and for authenticating records of
the corporation;
(b) see that all notices are duly given in accordance with the
provisions of Sections 1.3, 1.5, 2.8, and 2.10 of these Bylaws and as required
by law;
(c) be custodian of the corporate records and seal of the
corporation, if one be adopted;
(d) keep a register of the post office address of each
shareholder and director;
(e) attest certificates for shares of the corporation;
(f) have general charge of the stock transfer books of the
corporation;
(g) when required by law or authorized by resolution of the
Board of Directors, sign with the President, or other officer authorized by the
President or the Board, deeds, mortgages, bonds, contracts, and other
instruments; and
(h) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned by the
President or the Board of Directors.
In the absence of the Secretary, an Assistant Secretary may perform the
duties of the Secretary.
3.3.5 Treasurer. If required by the Board of Directors, the Treasurer
---------
shall give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the Board shall determine. The Treasurer
shall:
(a) have charge and custody of and be responsible for all
funds and securities of the corporation;
(b) receive and give receipts for moneys due and payable to
the corporation from any source whatsoever and deposit all such moneys in the
name of the corporation in banks, trust companies, or other depositories
selected in accordance with the provisions of these Bylaws; and
(c) in general, perform all of the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
by the President or the Board of Directors.
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In the absence of the Tresurer, an Assistant Treasurer may perform the
duties of the Treasurer.
3.4 Delegation. In case of the absence or inability to act of any
----------
officer of the corporation and of each person herein authorized to act in his or
her place, the Board of Directors may from time to time delegate the powers and
duties of such officer to any other officer or other person whom it may select.
3.5 Resignation. Any officer may resign at any time by delivering
-----------
notice to the corporation. Any such resignation shall take effect at the time
the notice is delivered unless the notice specifies a later effective date.
Unless otherwise specified therein, acceptance of such resignation by the
corporation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights, if any, of the corporation under any
contract to which the officer is a party.
3.6 Removal. Any officer or agent may be removed by the Board with or
-------
without cause. An officer empowered to appoint another officer or assistant
officer also has the power with or without cause to remove any officer he or she
would have the power to appoint whenever in his or her judgment the best
interests of the corporation would be served thereby. The removal of an officer
or agent shall be without prejudice to the contract rights, if any, of the
corporation or the person so removed. Appointment of an officer or agent shall
not of itself create contract rights.
3.7 Vacancies. A vacancy in any office because of death, resignation,
---------
removal, disqualification, creation of a new office, or any other cause may be
filled by the Board of Directors for the unexpired portion of the term or for a
new term established by the Board.
3.8 Other Officers and Agents. One or more Vice Presidents and such
-------------------------
other officers and assistant officers as may be deemed necessary or advisable
may be appointed by the Board of Directors or, to the extent provided in Section
3.3.2 above, by the President. Such other officers and assistant officers shall
hold office for such periods, have such authorities, and perform such duties as
are provided in these Bylaws or as may be provided by resolution of the Board.
Any officer may be assigned by the Board any additional title that the Board
deems appropriate. The Board may delegate to any officer or agent the power to
appoint any such assistant officers or agents and to prescribe their respective
terms of office, authorities, and duties.
3.9 Compensation. Compensation, if any, for officers and other agents
------------
and employees of the corporation shall be determined by the Board of Directors,
or by a committee or officer appointed by the Board. No officer shall be
prevented from receiving compensation in such capacity by reason of the fact
that he or she is also a director of the corporation.
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ARTICLE IV
CONTRACTS, CHECKS AND DRAFTS
----------------------------
4.1 Contracts. The Board of Directors may authorize any officer or
---------
officers or agent or agents to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation. Such authority
may be general or confined to specific instances.
Subject to the limitations set forth in RCW 23B.08.700 through 23B.08.730
and 23B.19.040, to the extent applicable:
(a) The corporation may enter into contracts and otherwise transact
business as vendor, purchaser, lender, borrower, or otherwise with its directors
and shareholders and with corporations, associations, firms, and entities in
which they are or may be or become interested as directors, officers,
shareholders, members, or otherwise.
(b) Any such contract or transaction shall not be affected or invalidated
or give rise to liability by reason of the director's or shareholder's having an
interest in the contract or transaction.
4.2 Checks, Drafts, Etc. All checks, drafts, and other orders for the
-------------------
payment of money, notes, and other evidences of indebtedness issued in the name
of the corporation shall be signed by such officer or officers or agent or
agents of the corporation and in such manner as may be determined from time to
time by resolution of the Board of Directors.
4.3 Deposits. All funds of the corporation not otherwise employed
--------
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies, or other depositories as the Treasurer, subject to the
direction of the Board of Directors, may select.
ARTICLE V
STOCK
-----
5.1 Issuance of Shares. No shares of the corporation shall be issued
------------------
unless authorized by the Board of Directors, which authorization shall include
the maximum number of shares to be issued, the consideration to be received for
each share, and, if the consideration is in a form other than cash, the
determination of the value of the consideration.
5.2 Certificates of Stock. All shares of the corporation shall be
---------------------
represented by certificates in such form, not inconsistent with the Articles of
Incorporation, as the Board of Directors may from time to time prescribe.
Certificates of stock shall be issued in
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numerical order, and each shareholder shall be entitled to a certificate signed
by the President or a Vice President, attested to by the Secretary or an
Assistant Secretary, and sealed with the corporate seal, if any. If any
certificate is manually signed by a transfer agent or a transfer clerk and by a
registrar, the signatures of the President, Vice President, Secretary or
Assistant Secretary upon that certificate may be facsimiles that are engraved or
printed. If any person who has signed or whose facsimile signature has been
placed on a certificate no longer is an officer when the certificate is issued,
the certificate may nevertheless be issued with the same effect as if the person
were still an officer at the time of its issue. Every certificate of stock shall
state:
(a) The state of incorporation;
(b) The name of the registered holder of the shares represented thereby;
(c) The number and class of shares, and the designation of the series, if
any, which such certificate represents;
(d) If the corporation is authorized to issue different classes of shares
or different series within a class, either a summary of (on the face or back of
the certificate), or a statement that the corporation will furnish to any
shareholder upon written request and without charge a summary of, the
designations, relative rights, preferences, and limitations applicable to each
class and the variations in rights, preferences and limitations determined for
each series, and the authority of the Board of Directors to determine variations
for future series; and
(e) If the shares are subject to transfer or other restrictions under
applicable securities laws or contracts with the corporation, either a complete
description of or a reference to the existence and general nature of such
restrictions on the face or back of the certificate.
5.3 Stock Records. The corporation or its agent shall maintain at the
-------------
registered office or principal office of the corporation, or at the office of
the transfer agent or registrar of the corporation, if one be designated by the
Board of Directors, a record of its shareholders, in a form that permits
preparation of a list of the names and addresses of all shareholders in
alphabetical order by class of shares showing the number and class of shares
held by each. The person in whose name shares stand on the books of the
corporation shall be deemed by the corporation to be the owner thereof for all
purposes.
5.4 Restrictions on Transfer. The Board of Directors shall have the
------------------------
authority to issue shares of the capital stock of this corporation and the
certificates therefor subject to such transfer restrictions and other
limitations as it may deem necessary to promote compliance with applicable
federal and state securities laws, and to regulate the transfer thereof in such
manner as may be calculated to promote such compliance or to further any other
reasonable purpose. Except to the extent that the corporation
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has obtained an opinion of counsel acceptable to the corporation that transfer
restrictions are not required under applicable securities laws, all certificates
representing shares of the corporation shall bear the following legend (or a
legend of substantially the same import) on the face of the certificate or on
the reverse of the certificate if a reference to the legend is contained on the
face:
NOTICE: RESTRICTIONS ON TRANSFER
The securities represented by this certificate have not been registered
under the Securities Act of 1933, or any state securities laws, and may not
be offered, sold, transferred, encumbered, or otherwise disposed of except
upon satisfaction of certain conditions. Information concerning these
restrictions may be obtained from the corporation or its legal counsel. Any
offer or disposition of these securities without satisfaction of said
conditions will be wrongful and will not entitle the transferee to register
ownership of the securities with the corporation.
5.5 Transfers. Shares of stock may be transferred by delivery of the
---------
certificates therefor, accompanied by:
(a) an assignment in writing on the back of the certificate, or an
assignment separate from certificate, or a written power of attorney to sell,
assign, and transfer the same, signed by the record holder of the certificate;
and
(b) such additional documents, instruments, and other items of
evidence as may be reasonably necessary to satisfy the requirements of any
transfer restrictions applicable to such shares, whether arising under
applicable securities or other laws, or by contract, or otherwise.
Except as otherwise specifically provided in these Bylaws, no shares of
stock shall be transferred on the books of the corporation until the outstanding
certificate therefor has been surrendered to the corporation. All certificates
surrendered to the corporation for transfer shall be canceled, and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and canceled, except that, in case of a lost,
destroyed, or mutilated certificate, a new one may be issued therefor upon such
terms (including indemnity to the corporation) as the Board of Directors may
prescribe.
ARTICLE VI
RECORDS OF CORPORATE MEETINGS
-----------------------------
The corporation shall keep, as permanent records, minutes of all meetings
of its shareholders and Board of Directors, a record of all actions taken by the
shareholders or Board of Directors without a meeting, and a record of all
actions taken by a committee of the Board of Directors exercising the authority
of the Board of Directors on
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behalf of the corporation. The corporation shall keep at its principal office a
copy of the minutes of all shareholders' meetings that have occurred, and
records of all action taken by shareholders without a meeting, within the past
three (3) years. Any person dealing with the corporation may rely upon a copy of
any of the records of the proceedings, resolutions, or votes of the Board or
shareholders when certified by the President or Secretary.
ARTICLE VII
FINANCIAL MATTERS
-----------------
The corporation shall maintain appropriate accounting records at its
principal office and shall prepare the annual financial statements required by
RCW 23B.16.200. Except to the extent otherwise expressly determined by the
Board of Directors or otherwise required by law, the accounting records of the
corporation shall be kept and prepared in accordance with generally accepted
accounting principles applied on a consistent basis from period to period. The
fiscal year of the corporation shall be the calendar year unless otherwise
expressly determined by the Board of Directors.
ARTICLE VIII
DISTRIBUTIONS
-------------
The Board of Directors may from time to time authorize, and the corporation
may make, distributions (as defined in RCW 23B.01.400) to its shareholders to
the extent permitted by RCW 23B.06.400, subject to any limitation in the
Articles of Incorporation. A director who votes for or assents to a
distribution made in violation of RCW 23B.06.400 is personally liable to the
corporation for the amount of the distribution that exceeds that which could
have been distributed without violating RCW 23B.06.400 if it is established that
the director did not perform the director's duties in compliance with Section
2.1 above.
ARTICLE IX
CORPORATE SEAL
--------------
The Board of Directors may, but shall not be required to, adopt a corporate
seal for the corporation in such form and with such inscription as the Board may
determine. If such a corporate seal shall at any time be so adopted, the
application of or the failure to apply such seal to any document or instrument
shall have no effect upon the validity or invalidity of such document or
instrument under otherwise applicable principles of law.
ARTICLE X
MISCELLANY
----------
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10.1 Communications by Facsimile. Whenever these Bylaws require notice,
---------------------------
consent, or other communication to be delivered for any purpose, transmission by
phone, wire, wireless equipment or electronic mail which transmits a facsimile
of such communication shall constitute sufficient delivery for such purpose.
Such communication shall be deemed to have been received by or in the possession
of the addressee upon completion of the transmission.
10.2 Inspector of Elections. Before any annual meeting of shareholders,
----------------------
the Board of Directors may appoint an inspector of elections to act at the
meeting and any adjournment thereof. If no inspector of elections is so
appointed by the Board, then the chairman of the meeting may appoint an
inspector of elections to act at the meeting. If any person appointed as
inspector fails to appear or fails or refuses to act, then the chairman of the
meeting may, and upon the request of any shareholder or a shareholder's proxy
shall, appoint a person to fill that vacancy.
Such inspector of elections shall:
(a) determine the number of shares outstanding and the voting power of
each, the number of shares represented at the meeting, the existence of a
quorum, and, with the advice of legal counsel to the corporation, the
authenticity, validity, and effect of proxies pursuant to RCW 23B.07.220 and
23B.07.240 and any procedure adopted by the Board of Directors pursuant to RCW
23B.07.230;
(b) receive votes, ballots, or consents;
(c) hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine the result; and
(f) do any other acts that may be proper to conduct the election or
vote with fairness to all shareholders.
10.3 Rules of Order. The rules contained in the most recent edition of
--------------
Robert's Rules of Order, Revised, shall govern all meetings of shareholders and
directors where those rules are not inconsistent with the Articles of
Incorporation or Bylaws, subject to the following:
(a) The chairman of the meeting shall have absolute authority over
matters of procedure, and there shall be no appeal from the ruling of the
chairman. If the chairman in his or her absolute discretion deems it advisable
to dispense with the rules of parliamentary procedure for any meeting or any
part thereof, the chairman shall so state and shall clearly state the rules
under which the meeting or appropriate part thereof shall be conducted.
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(b) If disorder should arise which prevents continuation of the
legitimate business of the meeting, the chairman may quit the chair and announce
the adjournment of the meeting; upon so doing, the meeting shall be deemed
immediately adjourned, subject to being reconvened in accordance with Section
1.5 of these Bylaws, as the case may be.
(c) The chairman may ask or require that anyone not a bona fide
shareholder or proxy leave the meeting of shareholders.
(d) A resolution or motion at a meeting of shareholders shall be
considered for vote only if proposed by a shareholder or duly authorized proxy
and seconded by an individual who is a shareholder or duly authorized proxy
other than the individual who proposed the resolution or motion.
10.4 Construction. Within these Bylaws, words of any gender shall be
------------
construed to include any other gender, and words in the singular or plural
number shall be construed to include the plural or singular, respectively,
unless the context otherwise requires.
10.5 Severability. If any provision of these Bylaws or any application
------------
thereof shall be invalid, unenforceable, or contrary to applicable law, the
remainder of these Bylaws, and the application of such provisions to individuals
or circumstances other than those as to which it is held invalid, unenforceable,
or contrary to applicable law, shall not be affected thereby.
ARTICLE XI
AMENDMENT OF BYLAWS
-------------------
Subject to the requirements of RCW 23B.10.210 relating to supermajority
quorum provisions for the Board of Directors, the Bylaws of the corporation may
be amended or repealed, or new Bylaws may be adopted, by: (a) the shareholders,
even though the Bylaws may also be amended or repealed, or new Bylaws may also
be adopted, by the Board of Directors; or (b) subject to the power of the
shareholders of the corporation to change or repeal the Bylaws, the Board of
Directors, unless such power is reserved, by the Articles of Incorporation or by
law, exclusively to the shareholders in whole or in part or unless the
shareholders, in amending or repealing a particular bylaw, provide expressly
that the Board of Directors may not amend or repeal that bylaw. Any officer of
the corporation may authenticate a restatement of the Bylaws and all amendments
thereto adopted in the manner provided above.
ARTICLE XII
AUTHENTICATION
--------------
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The foregoing Bylaws were read, approved, and duly adopted by the Board of
Directors of Airspan Networks Inc. on the ____ day of _________________, 1999,
and the Chairman of the Board and Secretary of the corporation were empowered to
authenticate such Bylaws by their signatures below.
/s/ Thomas S. Huseby
___________________________________________
Thomas S. Huseby, Chairman of the Board
/s/ Joseph Caffarelli
___________________________________________
Joseph Caffarelli, Secretary
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