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Exhibit 3.2
WESTERN MULTIPLEX CORPORATION
AMENDED AND RESTATED BY-LAWS
ARTICLE I
OFFICES
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Section 1. Principal Place of Business. The principal place of
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business of Western Multiplex Corporation (the "Corporation") shall be in
Sunnyvale, California.
Section 2. Other Offices. The Corporation may also have offices at
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such other places as the Board of Directors may from time to time appoint or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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Section 1. Annual Meetings. The annual meetings of the stockholders
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of the Corporation for the purpose of electing directors and for the transaction
of such other business as may properly be brought before the meeting shall be
held, at such time and place within or without the State of Delaware as the
Board of Directors shall from time to time determine.
Section 2. Special Meetings. Special meetings of the stockholders
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may be called only by the Chief Executive Officer or the President of the
Corporation or by the Board of Directors pursuant to a resolution approved by
the Board of Directors. The purpose or purposes of the proposed meeting shall
be included in the notice setting forth such call.
Section 3. Notice. Except as otherwise provided by law, at least ten
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(10) and not more than sixty (60) days before each meeting of stockholders,
written notice of the time, date and place of the meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called, shall
be delivered personally or mailed to each stockholder of record entitled to vote
at the meeting at such address as appears on the records of the Corporation.
Subject to Section 4 of this Article II, no business other than that stated in
the notice shall be transacted at any meeting.
Section 4. Notice of Stockholder Business and Nominations.
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(a) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors and the proposal of business to be considered
by the stockholders may be made at an annual meeting of stockholders (A)
pursuant to the Corporation's notice of meeting delivered pursuant to Section 3
of this Article II, (B) by or at the direction of the Board of Directors or (C)
by any stockholder of the Corporation who is entitled to vote at the meeting,
who complied with the notice procedures set forth in paragraphs (a)(2)
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and (a)(3) of this Section 4 and who was a stockholder of record at the time
such notice is delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (C) of paragraph (a)(1) of
this Section 4, the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation and such business must be a proper subject
for stockholder action under the General Corporation Law of the State of
Delaware. To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not less than
sixty (60) days nor more than ninety (90) days prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
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the date of the annual meeting is advanced by more than thirty (30) days or
delayed by more than sixty (60) days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the ninetieth day
prior to such annual meeting and not later than the close of business on the
later of the sixtieth day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting is
first made. Such stockholder's notice shall set forth (x) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected; (y) as to any other business that the stockholder 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 and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (z) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, as the case may be, and (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 4 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is no
public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least
seventy (70) days prior to the first anniversary of the preceding year's annual
meeting, a stockholders' notice required by this Section 4 shall also 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 at the
principal executive offices of the Corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting pursuant to Section
3 of this Article II. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders
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at which directors are to be elected pursuant to the Corporation's notice of
meeting (A) by or at the direction of the Board of Directors or (B) by any
stockholder of the Corporation who is entitled to vote at the meeting, who
complies with the notice procedures set forth in this Section 4 and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation. Nominations by stockholders of persons for election to the
Board of Directors may be made at such a special meeting of stockholders if the
stockholder's notice required by paragraph (a)(2) of this Section 4 shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the ninetieth day prior to such special meeting and not later
than the close of business on the later of the sixtieth day prior to such
special meeting or the tenth day following the day on which public announcement
is first made of the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting.
(c) General. (1) Only persons who are nominated in accordance with
the procedures set forth in this Section 4 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 4. Except as otherwise provided by law, the Amended
and Restated Certificate of Incorporation of the Corporation (the "Certificate
of Incorporation") or these Amended and Restated By-Laws (these "By-Laws"), the
chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made in
accordance with this Section 4 and, if any proposed nomination or business is
not in compliance with this Section 4, to declare that such defective proposal
or nomination shall be disregarded.
(2) For purposes of this Section 4, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or 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 Exchange Act.
(3) For purposes of this Section 4, no adjournment nor notice of
adjournment of any meeting shall be deemed to constitute a new notice of such
meeting for purposes of this Section 4, and in order for any notification
required to be delivered by a stockholder pursuant to this Section 4 to be
timely, such notification must be delivered within the periods set forth above
with respect to the originally scheduled meeting.
(4) Notwithstanding the foregoing provisions of this Section 4, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 4. Nothing in this Section 4 shall be deemed to affect
any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 5. Quorum. At any meeting of stockholders, the holders of
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record, present in person or by proxy, of a majority in voting power of the
Corporation's issued and outstanding capital stock entitled to vote thereat
shall constitute a quorum for the transaction of business, except as otherwise
provided by law or by the Certificate of Incorporation. In the absence of a
quorum, any officer entitled to preside at or to act as secretary of the meeting
shall have power to adjourn the meeting from time to time without further
notice, other than an
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announcement at the meeting, until a quorum is present or represented. At such
adjourned meeting at which a quorum is present or represented, any business may
be transacted which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if, after the adjournment, a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 6. Voting. Except as otherwise provided by law, the
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Certificate of Incorporation, these By-Laws or any certificate of designations,
all matters submitted to a meeting of stockholders shall be decided by vote of
the holders of record, present in person or by proxy, of a majority in voting
power of the Corporation's issued and outstanding capital stock.
Section 7. Organization. The Chairman of the Board of Directors, or
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if there be no Chairman or in the Chairman's absence or at the Chairman's
discretion, the President, or in the President's absence or at the President's
direction, any officer of the Corporation shall call all meetings of the
stockholders to order and shall act as chairman of such meeting. The Secretary
of the Corporation or, in such officer's absence, an Assistant Secretary shall
act as secretary of the meeting. If neither the Secretary nor an Assistant
Secretary is present, the chairman of the meeting shall appoint a secretary of
the meeting. Unless otherwise determined by the Board of Directors prior to the
meeting, the chairman of the meeting shall determine the order of business and
shall have the authority in his or her discretion to regulate the conduct of any
such meeting, including, without limitation, by imposing restrictions on the
persons (other than stockholders of the Corporation or their duly appointed
proxies) who may attend any such meeting, whether any stockholder or
stockholders' proxy may be excluded from any meeting of stockholders based upon
any determination by the chairman of the meeting, in his or her sole discretion
that any such person has duly disrupted or is likely to disrupt the proceedings
thereat, and the circumstances in which any person may make a statement or ask
questions at any meeting of stockholders. The chairman of the meeting shall
have authority to adjourn any meeting of stockholders.
Section 8. Proxies. At all meetings of stockholders, any stockholder
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entitled to vote thereat shall be entitled to vote in person or by proxy, but no
proxy shall be voted after three (3) years from its date, unless such proxy
provides for a longer period. Without limiting the manner in which a
stockholder may authorize another person or persons to act for the stockholder
as proxy pursuant to the DGCL, the following shall constitute a valid means by
which a stockholder may grant such authority: (1) a stockholder may execute a
writing authorizing another person or persons to act for the stockholder as
proxy, and execution of the writing may be accomplished by the stockholder or
stockholder's authorized officer, director, employee or agent signing such
writing or causing his or her signature to be affixed to such writing by any
reasonable means, including but not limited to, facsimile signature; or (2) a
stockholder may authorize another person or persons to act for the stockholder
as proxy by transmitting or authorizing the transmission of a telegram,
cablegram, or other means of electronic transmission to the person who will be
the older of the proxy to receive such transmission, provided that any such
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telegram, cablegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that the
telegrams, cablegrams or other means of electronic transmissions are valid, the
judge or judges of stockholder votes or, if
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there are no such judges, such other persons making the determination shall
specify the information upon which they relied.
Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission created pursuant to the preceding paragraph of
this Section 8 may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
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or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Proxies shall be filed with the secretary of the meeting prior to or
at the commencement of the meeting to which they relate.
Section 9. Record Date; List of Stockholders. (1) In order that the
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Corporation may determine the stockholders (a) entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or (b) if and to the
extent permitted by the Certificate of Incorporation or these By-Laws, entitled
to consent to corporate action in writing without a meeting; or (c) entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date (i) in the case of clause (a) above, shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting, (ii) in the case of
clause (b) above, shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
(iii) in the case of clause (c) above, shall not be more than sixty (60) days
prior to such action. If, for any reason, the Board of Directors shall not have
fixed a record date for any such purpose, the record date for such purpose shall
be determined as provided by law. Only those stockholders of record on the date
so fixed or determined shall be entitled to any of the foregoing rights,
notwithstanding the transfer of any such stock on the books of the Corporation
after any such record date so fixed or determined.
(2) The officer who has charge of the stock ledger of the Corporation
shall prepare and make at least ten (10) days before every meeting of
stockholder, 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 so 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 at the time and kept at the place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 10. Judges. The Board of Directors, in advance of all
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meetings of the stockholders, shall appoint one or more judges of stockholder
votes, who may be stockholders or their proxies, but not directors of the
Corporation or candidates for office. In the event that the Board of Directors
fails to so appoint judges of stockholder votes or, in the event that one or
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more judges of stockholder votes previously designated by the Board of Directors
fails to appear or act at the meeting of the stockholders, the chairman of the
meeting may appoint one or more judges of stockholder votes to fill such vacancy
or vacancies. Judges of stockholder votes appointed to act at any meeting of
the stockholders, before entering upon the discharge of their duties, shall be
sworn faithfully to execute the duties of judge of stockholder votes with strict
impartiality and according to the best of their ability and the oath so taken
shall be subscribed by them. Judges of stockholder votes shall, subject to the
power of the chairman of the meeting to open and close the polls, take charge of
the polls, and after voting, shall make a certificate of the result of the vote
taken.
ARTICLE III
DIRECTORS
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Section 1. Number and Election of Directors. Subject to the rights,
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if any, of holders of any series of preferred stock to elect additional
Directors under specified circumstances, the number of Directors shall be fixed
from time to time exclusively by resolution of the Board of Directors adopted by
the affirmative vote of Directors constituting not less than a majority of the
total number of Directors that the Corporation would have if there were no
vacancies on the Corporation's Board of Directors, but shall consist of not less
than three (3) or more than fifteen (15) Directors. The Directors shall be
divided into three classes in the manner set forth in the Certificate of
Incorporation, each class to be elected for the term set forth therein. The
Directors shall be elected by stockholders at their annual meeting. Subject to
the rights, if any, of the holders of any series of preferred stock, and unless
the Board of Directors otherwise determines, vacancies and newly created
directorships resulting from any increase in the number of Directors may be
filled by an affirmative vote of the majority of the Directors then in office,
although less than a quorum, or by the sole remaining Director, and except as
otherwise provided by law, any such vacancy may not be filled by the
stockholders of the Corporation. Directors need not be stockholders.
Section 2. Meetings. Regular meetings of the Board of Directors
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shall be held at such times and places as may from time to time be fixed by the
Board of Directors or as may be specified in a notice of meeting. Special
meetings of the Board of Directors may be held at any time upon the call of the
Chairman of the Board of Directors or the President and shall be called by the
President or Secretary if directed by a majority of the Board of Directors.
Oral or written notice, including by telegraph, telex, or transmission of a
telecopy, facsimile, e-mail or other means of transmission, of each special
meeting of the Board of Directors shall be duly served on or sent or mailed to
each director to such director's address or telecopy number as shown on the
books of the Corporation not less than twenty-four (24) hours before such
meeting. A meeting of the Board of Directors may be held without notice
immediately after the annual meeting of the stockholders. Notice need not be
given of regular meetings of the Board of Directors. Meetings may be held
without notice if all the Directors are present (except when a Director attends
a meeting for the express purpose of objecting at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened) or if those not present waive notice of the meeting, before or after
such meeting, in writing.
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Section 3. Quorum. A majority of the total number of Directors then
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in office shall constitute a quorum for the transaction of business. If a
quorum is not present at any meeting of the Board of Directors, the Directors
present may adjourn the meeting from time to time, without notice, other than
announcement at the meeting, until such a quorum is present. Except as otherwise
provided by law, the Certificate of Incorporation, the By-Laws or any contract
or agreement to which the Corporation is a party, the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors.
Section 4. Committees of the Board of Directors. There are hereby
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established as committees of the Board of Directors an Audit Committee and a
Compensation Committee, each of which shall have the powers and functions set
forth in subsections (a) and (b) of this Section 4, respectively, and such
additional powers as may be delegated to it by the Board of Directors. The
Board of Directors may from time to time establish additional standing
committees or special committees of the Board of Directors, each of which shall
have such powers and functions as may be delegated to it by the Board of
Directors. The Board of Directors may abolish any committee established by or
pursuant to this Section 4 as it may deem advisable. The Audit Committee shall
consist of three or more directors, and each such other committee shall consist
of two or more directors, the exact number being determined from time to time by
the Board of Directors. Designations of the chairman and members of each such
committee, and if desired, a vice chairman and alternates for members, shall be
made by the Board of Directors. In the absence or disqualification of any
member of any committee and any alternate member in his or her place, the member
or members of the committee present at the meeting and not disqualified from
voting whether or not he or she or they constitute a quorum, may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in
the place of the absent or disqualified member. Each committee shall have a
secretary who shall be designated by its chairman. A vice chairman of a
committee shall act as the chairman of the committee in the absence or
disability of the chairman.
(a) Audit Committee. The Audit Committee shall select and engage, on
behalf of the Corporation, independent public accountants to (1) audit the books
of account or other corporate records of the Corporation and (2) perform such
other duties as the Audit Committee may from time to time prescribe. The Audit
Committee shall transmit financial statements certified by such independent
public accountants to the Board of Directors after the close of each fiscal
year. The selection of independent public accountants for each fiscal year
shall be made in advance of the annual meeting of stockholders in such fiscal
year and shall be submitted for ratification or rejection at such meeting. The
Audit Committee shall confer with such accountants and review and approve the
scope of the audit of the books of account and other corporate records of the
Corporation. The Audit Committee shall have the power to confer with and direct
the officers of the Corporation to the extent necessary to review the internal
controls, accounting practices, financial structure and financial reporting of
the Corporation. From time to time the Audit Committee shall report to and
advise the Board of Directors concerning the results of its consultation and
review and such other matters relating to the internal controls, accounting
practices, financial structure and financial reporting of the Corporation as the
Audit Committee believes merit review by the Board of Directors. The Audit
Committee also shall perform such other functions and exercise such other powers
as may be delegated to it from time to time by the Board of Directors.
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(b) Compensation Committee. The Compensation Committee shall fix from
time to time the salaries of members of the Board of Directors who are officers
or employees of the Corporation and of all Vice Presidents of the Corporation.
It also shall perform such functions as may be delegated to it under the
provisions of any bonus, supplemental compensation, special compensation or
stock option plan of the Corporation.
(c) Other Committees. The Board of Directors, or any committee,
officer or employee of the Corporation may establish additional standing
committees or special committees, each of which shall have the powers and
functions as may be delegated to it by the Board of Directors. The members of
any such committee need not be members of the Board of Directors. Any committee
established pursuant to this Section 4(d) may be abolished by the Board of
Directors or by the person or body by whom it was established as he, she or it
may deem advisable. Each such committee shall consist of two or more members,
the exact number being determined from time to time by such person or body.
Designations of members of each such committee and, if desired, alternates for
members, shall be made by such person or body, at whose will all such members
and alternates shall serve. The chairman of each such committee shall be
designated by such person or body. Each such committee shall have a secretary
who shall be designated by the chairman.
(d) Application of Article. Whenever any provision of any other
document relating to any committee of the Corporation named therein shall be in
conflict with any provision of this Section 4, the provisions of this Section 4
shall govern, except that if such other document shall have been approved by the
stockholders, voting as provided in the Certificate of Incorporation, or by the
Board of Directors, the provisions of such other document shall govern.
Section 5. Compensation of Directors. Unless otherwise restricted by
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the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the compensation of Directors. The Directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
Section 6. Reliance upon Books, Reports and Records. Each Director,
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each member of any committee designated by the Board of Directors and each
officer, in the performance of his or her duties, shall be fully protected in
relying in good faith upon such information, opinions, reports or statements
presented to the Corporation by any of its officers or employees, or by
committees of the Board of Directors, or by any other person, as to matters such
director, member or officer, as the case may be, reasonably believes are within
such person's professional or expert competence and who has been selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Corporation.
Section 7. Meetings by Means of Conference Telephone. Unless
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otherwise provided by the Certificate of Incorporation or these By-Laws, members
of the Board of
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Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of
a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 shall constitute presence in person at such
meeting.
Section 8. Consent. Unless otherwise restricted by the Certificate
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of Incorporation or these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if all members of the Board of Directors or committee,
as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the Board of Directors.
Section 9. Resignations. Any Director may resign at any time by
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giving written notice to the Board of Directors or to the President or Secretary
of the Corporation. Any such resignation shall be effective at the time
specified therein, or, if the time be not specified, upon receipt thereof; and
unless otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
ARTICLE IV
OFFICERS
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Section 1. Election; Term of Office. (1) The Board of Directors,
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immediately after the annual meeting of stockholders, shall elect officers of
the Corporation, including a Chief Executive Officer, a President, a Vice
President, a Treasurer and a Secretary and such other additional officers with
such titles as the Board of Directors shall determine from time to time. Except
as provided by law, any number of offices may be held by the same person.
(2) All offices of the Corporation elected by the Board of Directors
shall hold office for such term as may be determined by the Board of Directors
or until their respective successors are chosen and qualified. Any officer may
be removed from office at any time either with or without cause by the
affirmative vote of a majority of the members of the Board then in office.
Section 2. Powers and Duties. Such officers shall have the powers
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and duties prescribed by law, these By-Laws or the Board of Directors. All
officers shall be subject to the supervision and direction of the Board of
Directors. The authority, duties or responsibilities of any officer of the
Corporation may be suspended by the President with or without cause. Unless
otherwise provided in these By-Laws, in the absence or disability of any officer
of the Corporation, the Board of Directors may, during such period, delegate
such officer's powers and duties to any other officer or to any director and the
person to whom such powers and duties are delegated shall, for the time being,
hold such office.
Section 3. Resignations. Any officer or agent of the Corporation may
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resign at any time by giving written notice to the Board of Directors, the
President or the Secretary of the
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Corporation. Any such resignation shall be effective at the time specified
therein or, if the time be not specified, upon receipt thereof; and unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
ARTICLE V
STOCK
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Section 1. Certificates of Stock. The shares of stock of the
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Corporation shall be represented by certificates, provided that the Board of
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Directors may provide by resolution or resolutions that some or all of any or
all classes or series of the Corporation's stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the Corporation. Notwithstanding the
adoption of such a resolution by the Board of Directors, every holder of stock
represented by certificates and, upon request, every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
Corporation by the Chairman of the Board of Directors, or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation, as otherwise permitted by law,
representing the number of shares registered in certificate form; and no
certificate shall be valid unless so signed. Any or all of the signatures on
the certificate may be a facsimile. The certificates shall be consecutively
numbered and shall be entered in the books of the Corporation as they are
issued. They shall exhibit the holder's name, number of shares and the date of
issue.
Section 2. Transfer of Stock. Upon surrender to the Corporation of a
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certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Corporation will issue a
new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. Transfers of uncertificated shares will
be made on the records of the Corporation as may be provided by law.
Section 3. Lost Certificates. Any person claiming a stock
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certificate in lieu of one lost, destroyed or stolen shall give the Corporation
an affidavit as to his, her or its ownership of the certificate and of the facts
which go to prove that it has been lost, destroyed or stolen. If required by
the Board of Directors, he, she or it also shall give the Corporation a bond, in
such form as may be approved by the Board of Directors, sufficient to indemnify
the Corporation against any claim that may be made against it on account of the
alleged loss of the certificate or the issuance of a new certificate. A new
certificate shall be issued upon receipt of such an affidavit and, if required,
upon the giving of such a bond.
Section 4. Registered Stockholders. The Corporation shall be
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entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and according shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person whether or not it shall have express or other notice thereof,
except as expressly provided by law.
<PAGE>
11
ARTICLE VI
GENERAL PROVISIONS
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Section 1. Notices. Whenever any of the laws of the State of
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Delaware, the Certificate of Incorporation or these By-Laws require notice to be
given to any Director or stockholder, such notice, except as otherwise provided
by the laws of the State of Delaware, may be given in writing by mail, addressed
to such Director or stockholder at his address as it appears in the records of
the Corporation, with postage thereon prepaid. Such notice shall be deemed to
have been given when it is deposited in the United States mail. Notice to
Directors may also be given personally or by telephone or facsimile transmission
or by telegram. Any notice given by facsimile transmission shall be deemed to
have been given when transmitted. A waiver of such notice in writing, including
by facsimile transmission, signed by the person or persons entitled thereto,
whether before or after the time stated in such notice, shall be equivalent to
the giving of such notice. Attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting except where a Director attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
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fixed by the Board of Directors.
Section 3. Corporate Books. The books of the Corporation may be kept
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outside of the State of Delaware at such place or places as the Board of
Directors may from time to time determine.
Section 4. Corporate Seal. The corporate seal shall be in such form
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as shall from time to time be approved by the Board of Directors. In lieu of
the corporate seal, when so authorized by the Board of Directors or a duly
empowered committee thereof, a facsimile thereof may be impressed or affixed or
reproduced. The corporate seal shall be retained under the custody and control
of the Secretary or any Assistant Secretary except as and to the extent the use
of the same by others may be expressly authorized by the Board of Directors.
Section 5. Amendments. These By-Laws may be altered, amended or
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repealed by the affirmative vote of Directors constituting not less than a
majority of the total number of Directors that the Corporation would have if
there were no vacancies on the Corporation's Board of Directors, provided that
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notice of such alteration, amendment or repeal be contained in the notice of
such meeting of the Board of Directors, and provided, further, that these By-
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Laws may also be altered, amended or repealed by the affirmative vote of the
holders of at least 66 2/3% of the total voting power of all classes of
outstanding capital stock, voting together as a single class.
