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Exhibit 3.2
CONEXANT SPINCO, INC.
(Delaware)
BYLAWS
ARTICLE ONE
SHAREHOLDERS
SECTION 1.1. Annual Meeting. An annual meeting of shareholders for
the election of directors and for the transaction of such other business as may
properly be presented at the meeting, notice of which was given in the notice of
meeting, shall be held on such date and at such time as may from time to time be
designated by resolution duly adopted by the Board of Directors, at such place
(within or without the State of Delaware) as the Board of Directors, the
Executive Committee, if any, or the Chief Executive Officer may fix.
SECTION 1.2. Special Meetings. A special meeting of shareholders
may be called for any proper purpose, notice of which was given in the notice of
meeting, at any time by the Board of Directors, the Executive Committee, if any,
or the Chief Executive Officer and shall be called by any of them or by the
Secretary upon receipt of a written request to do so specifying the matter or
matters, appropriate for action at such a meeting, that are proposed to be
presented at the meeting, signed by holders of record of a majority of the
shares of stock that would be entitled to be voted on such matter or matters if
the meeting were held on the day such request is received and the record date
for such meeting were the close of business on the preceding day. Any such
meeting shall be held on such date, at such time and at such place, within or
without the State of Delaware, as shall be determined by the body or person
calling such meeting and as shall be stated in the notice of such meeting.
SECTION 1.3. Notice of Meeting. For each meeting of shareholders
written notice shall be given stating the place, date and hour and the purpose
or purposes for which the meeting is called and, if other than the place where
the meeting is to be held, the place within the city in which the meeting is to
be held where the list of shareholders required by Section 1.10 is to be open
for examination at least 10 days prior to the meeting. Except as otherwise
provided by
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Delaware law, the written notice of any meeting shall be given not less than 10
nor more than 60 days before the date of the meeting to each shareholder
entitled to vote at such meeting. If mailed, notice shall be deemed to be given
when deposited in the United States mail, postage prepaid, directed to the
shareholder at his address as it appears on the records of the Corporation.
SECTION 1.4. Quorum. Except as otherwise required by law or in the
Certificate of Incorporation, the holders of record of a majority of the shares
of stock entitled to be voted present in person or represented by proxy at a
meeting shall constitute a quorum for the transaction of business at the
meeting, but, in the absence of a quorum, the holders of record present in
person or represented by proxy at such meeting may vote to adjourn the meeting
from time to time until a quorum is obtained.
SECTION 1.5. Presiding Officer and Secretary at Meetings. Each
meeting of shareholders shall be presided over by the Chief Executive Officer
or, in the Chief Executive Officer's absence, by the person designated in
writing by the Chief Executive Officer or, if no such person is present, then by
a person designated by the Board of Directors; if no such person is present,
then the shareholders at the meeting present in person or represented by proxy
shall by plurality vote elect a person to act as chairman of the meeting. The
Secretary, or in the Secretary's absence an Assistant Secretary, shall act as
secretary of the meeting, or, if no such officer is present, a secretary of the
meeting shall be designated by the chairman of the meeting.
SECTION 1.6. Voting. Except as otherwise provided by law or in the
Certificate of Incorporation, and subject to the provisions of Section 1.11:
(a) each shareholder of record shall be entitled at every
meeting of shareholders to one vote for each share standing in his name
on the books of the Corporation;
(b) directors shall be elected by a plurality vote;
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(c) each matter, other than election of directors, properly
presented to any meeting, shall be decided by a majority of the votes
cast on the matter; and
(d) election of directors and the vote on any other matter
presented to a meeting shall be by written ballot only if so ordered by
the chairman of the meeting or if so requested by any shareholder at the
meeting present in person or represented by proxy entitled to vote in
such election or on such matter, as the case may be.
SECTION 1.7. Proxies. Each shareholder entitled to vote at a
meeting of shareholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for him
or her by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period.
SECTION 1.8. Adjourned Meetings. A meeting of shareholders may be
adjourned to another time or place as provided in Sections 1.4 or 1.6(c). Unless
the Board of Directors fixes a new record date, shareholders of record for an
adjourned meeting shall be as originally determined for the meeting from which
the adjournment was taken. If the adjournment is for more than 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 shareholder of record
entitled to vote at the meeting. At the adjourned meeting, provided a quorum is
present, any business may be transacted that might have been transacted at the
meeting as originally called.
SECTION 1.9. Consent of Shareholders in Lieu of Meeting. Any action
that may be taken at any annual or special meeting of shareholders may be taken
without a meeting, without prior notice and without a vote, if one or more
consents in writing, setting forth the action so taken and signed by the holders
of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted, are delivered to the
Corporation by delivery to its registered office in the State of Delaware by
hand or by certified or
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registered mail, return receipt requested, to its principal place of business,
or to an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of shareholders are recorded. Every consent shall bear
the date of signature of each shareholder signing the consent and no written
consent shall be effective to take the corporate action referred to therein
unless written consents signed by a sufficient number of shareholders to take
the action are delivered to the Corporation, in the manner required by law,
within 60 days of the earliest dated consent so delivered. Prompt notice of the
taking of such action shall be given to each shareholder that did not consent in
writing.
SECTION 1.10. List of Shareholders Entitled to Vote. A complete
list of the shareholders entitled to vote at every meeting of shareholders,
arranged in alphabetical order and showing the address of each shareholder and
the number of shares registered in the name of each shareholder, shall be
prepared and shall be open to the examination of any shareholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
Such list shall be produced and kept at the time and place of the meeting during
the whole time thereof and may be inspected by any shareholder who is present.
SECTION 1.11. Fixing of Record Date. The Board of Directors, by
resolution, may fix a date for determining the shareholders of record, which
record date shall not be earlier than the date of such resolution. The record
date shall be determined as follows:
(a) The record date for shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment thereof
shall not be more than 60 nor less than 10 days before the date of the
meeting. If no such record date is fixed by the Board of Directors, the
record date shall be the close of business on the day immediately
preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day immediately preceding the day on which
the meeting is held. The record date shall apply to any adjournment
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of the meeting unless the Board of Directors fixes a new record date for
the adjourned meeting.
(b) The record date for determining the shareholders
entitled to consent to corporate action in writing without a meeting
shall not be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. If no such
record date is fixed by the Board of Directors, the record date shall be
determined as follows:
(i) if no prior action by the Board of Directors is
required under the Delaware General Corporation Law, the record
date shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered
to the Corporation pursuant to the requirements of Section 1.9; and
(ii) if prior action by the Board of Directors is
required under the Delaware General Corporation Law, the record
date shall be the close of business on the day on which the Board
of Directors adopts a resolution taking such prior action.
(c) The record date for determining the shareholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the shareholders entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, shall be not more than 60 days
prior to such action. If no such record date is fixed by the Board of
Directors, the record date for determining shareholders for any such
purpose shall be the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
ARTICLE TWO
DIRECTORS
SECTION 2.1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors.
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SECTION 2.2. Number; Term of Office. The number of directors that
shall constitute the whole Board of Directors shall be determined by action of
the Board of Directors taken by the affirmative vote of a majority of the whole
Board of Directors or, if the Board of Directors shall not have taken such
action, it shall be the number of directors elected by the sole incorporator.
Directors shall be elected at the annual meeting of shareholders to hold office,
subject to Sections 2.3 and 2.4, until the next annual meeting of shareholders
and until their respective successors are elected and qualified.
SECTION 2.3. Resignation. Any director of the Corporation may
resign at any time by giving written notice of such resignation to the Board of
Directors, the Chief Executive Officer or the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein or, if no time
is specified, upon receipt thereof by the Board of Directors or one of the
above-named officers. Unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective. When one or more
directors shall resign from the Board of Directors effective at a future date, a
majority of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to take
effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office as provided in these Bylaws in the filling
of other vacancies.
SECTION 2.4. Removal. Any one or more directors may be removed,
with or without cause, by the holders of a majority of the shares entitled to
vote at an election of directors.
SECTION 2.5. Vacancies; Newly Created Directorships. Vacancies and
newly created directorships resulting from any increase in the authorized number
of directors may be filled by a vote of a majority of the directors then in
office, although less than a quorum, or by the sole remaining director, and the
directors so chosen shall hold office, subject to Sections 2.3 and 2.4, until
the next annual meeting of shareholders and until their respective successors
are elected and qualified.
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SECTION 2.6. Regular and Annual Meetings; Notice. Regular meetings
of the Board of Directors shall be held at such time and at such place (within
or without the State of Delaware) as the Board of Directors may from time to
time prescribe. No notice need be given of any regular meeting, and a notice, if
given, need not specify the purposes thereof. A meeting of the Board of
Directors may be held without notice immediately after an annual meeting of
shareholders at the same place as that at which such meeting was held.
SECTION 2.7. Special Meetings; Notice. A special meeting of the
Board of Directors may be called at any time by the Board of Directors, the
Executive Committee, if any, the Chief Executive Officer or any person acting in
the place of the Chief Executive Officer and shall be called by any one of them
or by the Secretary upon receipt of a written request to do so specifying the
matter or matters, appropriate for action at such a meeting, proposed to be
presented at the meeting and signed by at least two directors, except if the
number of directors constituting the whole Board of Directors is one, in which
event signed by the sole director. Any such meeting shall be held at such time
and at such place (within or without the State of Delaware) as shall be
determined by the body or person calling such meeting. Notice of such meeting
stating the time and place thereof shall be given (a) by deposit of the notice
in the United States mail, first class, postage prepaid, at least seven days
before the day fixed for the meeting, addressed to each director at his address
as it appears on the Corporation's records or at such other address as the
director may have furnished the Corporation for that purpose, or (b) by delivery
of the notice similarly addressed for dispatch by telex, telecopy, telegraph,
cable or radio or by delivery of the notice by telephone or in person, in each
case at least 24 hours before the time fixed for the meeting.
SECTION 2.8. Chairman of the Board; Presiding Officer and Secretary
at Meetings. The Board of Directors may elect one of its members to serve at its
pleasure as Chairman of the Board. Each meeting of the Board of Directors shall
be presided over by the Chairman of the Board, or in the absence of the Chairman
of the Board, by the Chief Executive Officer, if a director, or if neither is
present, by such member of the Board of Directors as shall be chosen by a
majority of the directors present. The
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Secretary, or in the absence of the Secretary an Assistant Secretary, shall act
as secretary of the meeting, or if no such officer is present, a secretary of
the meeting shall be designated by the person presiding over the meeting.
SECTION 2.9. Quorum; Voting. A majority of the whole Board of
Directors shall constitute a quorum for the transaction of business, but in the
absence of a quorum a majority of those present (or if only one be present, then
that one) may adjourn the meeting, without notice other than announcement at the
meeting, until such time as a quorum is present. Except as otherwise required by
law, the Certificate of Incorporation or the Bylaws, the 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.
SECTION 2.10. Meeting by Telephone. Members of the Board of
Directors or of any committee thereof may participate in meetings of the Board
of Directors or of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
SECTION 2.11. Action Without Meeting. 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 of such committee, as the case may be, consent thereto in writing
and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or of such committee.
SECTION 2.12. Executive and Other Committees. The Board of
Directors may, by resolution passed by a majority of the whole Board of
Directors, designate an Executive Committee or one or more other committees,
each such committee to consist of one or more directors as the Board of
Directors may from time to time determine. Any such committee, to the extent
provided in such resolution or resolutions, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, including the power to authorize the seal of the
Corporation to be affixed to all papers that may require it; but no such
committee shall have such power or authority in reference to amending the
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Certificate of Incorporation (except for such amendments as by law are expressly
permitted to be made by committees of the Board of Directors), adopting an
agreement of merger or consolidation, recommending to the shareholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the shareholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws; and unless the resolution
shall expressly so provide, no such committee shall have the power or authority
to declare a dividend or to authorize the issuance of stock or to adopt a
certificate of ownership and merger. The Board of Directors may designate one or
more directors as alternate members of any committee who, in the absence or
disqualification of a member or members of a committee at a meeting, may replace
such absent or disqualified member or members at such meeting. In the absence of
such a designation, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Each such
committee other than the Executive Committee shall have such name as may be
determined from time to time by the Board of Directors.
SECTION 2.13. Compensation. A director shall receive such
compensation, if any, for his services as a director as may from time to time be
fixed by the Board of Directors, which compensation may be based, in whole or in
part, upon his attendance at meetings of the Board of Directors or of its
committees. He may also be reimbursed for his expenses in attending any meeting.
ARTICLE THREE
OFFICERS
SECTION 3.1. Election; Qualification. The officers of the
Corporation shall be a Chief Executive Officer, one or more Vice Presidents, a
Secretary and a Treasurer, each of whom shall be elected by the Board of
Directors. Two or more offices may be held by the same person.
SECTION 3.2. Term of Office. Each officer shall hold office from
the time of such officer's election and qualification until the expiration of
the term for which such
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officer is elected and until the time such officer's successor is elected and
qualified, unless sooner such officer shall die or resign or shall be removed
pursuant to Section 3.4.
SECTION 3.3. Resignation. Any officer of the Corporation may resign
at any time by giving written notice of such resignation to the Board of
Directors, the Chief Executive Officer or the Secretary of the Corporation. Any
such resignation shall take effect at the time specified therein or, if no time
be specified, upon receipt thereof by the Board of Directors or one of the
above-named officers. Unless specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 3.4. Removal. Any officer of the Corporation may be removed
at any time, with or without cause, by the vote of a majority of the whole Board
of Directors.
SECTION 3.5. Vacancies. Any vacancy, however caused, in any office
of the Corporation may be filled by the Board of Directors.
SECTION 3.6. Compensation. The compensation of each officer shall
be such as the Board of Directors may from time to time determine.
SECTION 3.7. Chief Executive Officer. The Chief Executive Officer
shall be the chief executive officer of the Corporation and shall have general
charge of the business and affairs of the Corporation, subject, however, to the
right of the Board of Directors to confer specified powers on officers and
subject generally to the direction of the Board of Directors and the Executive
Committee, if any.
SECTION 3.8. Vice President. Each Vice President shall have such
powers and duties as generally pertain to the office of Vice President and as
the Board of Directors or the Chief Executive Officer may from time to time
prescribe. During the absence of the Chief Executive Officer or the Chief
Executive Officer's inability to act, the Vice President, or if there shall be
more than one Vice President then that one designated by the Board of Directors,
shall exercise the powers and shall perform the duties of the Chief Executive
Officer, subject to the direction of the Board of
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Directors and the Executive Committee, if any. One or more of the Vice
Presidents may be designated as Executive or Senior Vice Presidents and shall,
subject to the control of the Chief Executive Officer, have lead accountability
for components or functions of the Corporation as and to the extent designated
by the Chief Executive Officer. Each Executive or Senior Vice President shall
keep the Chief Executive Officer appropriately informed on the business and
affairs of the designated components or functions of the Corporation.
SECTION 3.9. Secretary. The Secretary shall keep the minutes of all
meetings of shareholders and of the Board of Directors. The Secretary shall be
custodian of the corporate seal and shall affix it or cause it to be affixed to
such instruments as require such seal and attest the same and shall exercise the
powers and shall perform the duties incident to the office of Secretary, subject
to the direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.10. Treasurer. The Treasurer shall have care of all funds
and securities of the Corporation and shall exercise the powers and shall
perform the duties incident to the office of Treasurer, subject to the direction
of the Board of Directors and the Executive Committee, if any.
SECTION 3.11. Other Officers. The Board of Directors may designate
any other officers of the Corporation, including one or more Assistant
Secretaries and one or more Assistant Treasurers, who shall exercise the powers
and shall perform the duties incident to their offices, subject to the direction
of the Board of Directors and the Executive Committee, if any.
ARTICLE FOUR
INDEMNIFICATION
SECTION 4.1. Indemnification. (a) The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that such person is or was a
director, officer,
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employee or agent of the Corporation or any of its majority-owned subsidiaries
or is or was serving at the request of the Corporation as a director, officer,
employee or agent (except in each of the foregoing situations to the extent any
agreement, arrangement or understanding of agency contains provisions that
supersede or abrogate indemnification under this Section) of another corporation
or of any partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation or any of its
majority-owned subsidiaries or is or was serving at the request of the
Corporation as a director, officer, employee or agent (except in each of the
foregoing situations to the extent any agreement, arrangement or understanding
of agency contains provisions that supersede or abrogate indemnification under
this Section) of another corporation or of any partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the
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Corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery of the State
of Delaware or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of
the Corporation or any of its majority-owned subsidiaries has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b) of this Section, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by or on behalf of such person
in connection therewith. If any such person is not wholly successful in any such
action, suit or proceeding but is successful, on the merits or otherwise, as to
one or more but less than all claims, issues or matters therein, the Corporation
shall indemnify such person against all expenses (including attorneys' fees)
actually and reasonably incurred by or on behalf of such person in connection
with each claim, issue or matter that is successfully resolved. For purposes of
this subsection and without limitation, the termination of any claim, issue or
matter by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
(d) Notwithstanding any other provision of this Section, to the
extent any person is a witness in, but not a party to, any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director, officer, employee or agent of
the Corporation or any of its majority-owned subsidiaries, or is or was serving
at the request of the Corporation as a director, officer, employee or agent
(except in each of the foregoing situations to the extent any agreement,
arrangement or understanding of agency contains provisions that supersede or
abrogate indemnification under this Section) of another corporation or of any
partnership, joint venture, trust or other enterprise, such person shall be
indemnified against all expenses (including attorneys' fees) actually and
reasonably incurred by or on behalf of such person in connection therewith.
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(e) Any indemnification under subsections (a) and (b) of this
Section (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because such
person has met the applicable standard of conduct set forth in subsections (a)
and (b) of this Section. Such determination shall be made (1) with respect to a
person who is a present or former director or officer of the Corporation (A) by
the Board of Directors by a majority vote of the Disinterested Directors (as
hereinafter defined), even though less than a quorum or (B) if there are no
Disinterested Directors or, even if there are Disinterested Directors, a
majority of such Disinterested Directors so directs, by (x) Independent Counsel
(as hereinafter defined) in a written opinion to the Board of Directors, a copy
of which shall be delivered to the claimant or (y) the shareholders of the
Corporation or (2) with respect to a person who is not a present or former
director or officer of the Corporation, by the chief executive officer of the
Corporation or by such other officer of the Corporation as shall be designated
from time to time by the Board of Directors. Any claimant shall be entitled to
be indemnified against the expenses (including attorneys' fees) actually and
reasonably incurred by such claimant in cooperating with the person or entity
making the determination of entitlement to indemnification (irrespective of the
determination as to the claimant's entitlement to indemnification) and, to the
extent successful, in connection with any litigation or arbitration with respect
to such claim or the enforcement thereof.
(f) Expenses (including attorneys' fees) incurred in defending a
civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding to a present or former director or officer of the
Corporation, promptly after receipt of a request therefor stating in reasonable
detail the expenses incurred, and to a person who is not a present or former
director or officer of the Corporation as authorized by the chief executive
officer of the Corporation or by such other officer of the Corporation as shall
be designated from time to time by the Board of Directors; provided that in each
case the Corporation shall have received an undertaking by or on behalf of the
present or former director, officer, employee or agent to repay such amount if
it shall ultimately be
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determined that such person is not entitled to be indemnified by the Corporation
as authorized in this Section.
(g) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section shall not limit the
Corporation from providing any other indemnification or advancement of expenses
permitted by law nor shall they be deemed exclusive of any other rights to which
a person seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of shareholders or Disinterested Directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office.
(h) The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Section.
(i) For the purposes of this Section, references to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Section with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
(j) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans;
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references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to any employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Section.
(k) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall, unless otherwise provided when
authorized or ratified by the Board of Directors or the officer of the
Corporation authorized to do so, continue as to a person who has ceased to be a
director, officer, employee or agent of the Corporation or any of its majority
owned subsidiaries and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(l) For purposes of this Section,
(1) "Disinterested Director" means a director of the Corporation
who is not and was not a party to an action, suit or proceeding in respect of
which indemnification is sought by a director, officer, employee or agent.
(2) "Independent Counsel" means a law firm, or a member of a law
firm, that (i) is experienced in matters of corporation law; (ii) neither
presently is, nor in the past five years has been, retained to represent the
Corporation, the director, officer, employee or agent claiming indemnification
or any other party to the action, suit or proceeding giving rise to a claim for
indemnification under this Section, in any matter material to the Corporation,
the claimant or any such other party; and (iii) would not, under applicable
standards of professional conduct then prevailing, have a conflict of interest
in representing either the Corporation or such director, officer, employee or
agent in an action to determine the Corporation's or such person's rights under
this Section.
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ARTICLE FIVE
CAPITAL STOCK
SECTION 5.1. Stock Certificates. The interest of each holder of
stock of the Corporation shall be evidenced by a certificate or certificates in
such form as the Board of Directors may from time to time prescribe, provided
the Board of Directors may by resolution provide that some or all of any or all
classes or series of its stock shall be uncertificated shares. Notwithstanding
the adoption of such a resolution by the Board of Directors, every holder of
uncertificated shares, upon request, shall be entitled to receive from the
Corporation a certificate representing the number of shares registered in such
shareholder's name on the books of the Corporation. Each stock certificate and
certificate representing previously uncertificated shares shall be signed by or
in the name of the Corporation by the Chief Executive Officer or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary. Any or all of the signatures appearing on any such
certificate or certificates may be a facsimile. If any officer, transfer agent
or registrar who has signed or whose facsimile signature has been placed upon
any such certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such officer, transfer agent or registrar were such
officer, transfer agent or registrar at the date of issue.
SECTION 5.2. Transfer of Stock. Shares of stock of the Corporation
shall be transferable on the books of the Corporation by the holder of record
thereof or by such holder's attorney, pursuant to applicable law and such rules
and regulations as the Board of Directors shall from time to time prescribe. Any
shares represented by a certificate shall be transferable only upon surrender of
the certificate with an assignment endorsed thereon or attached thereto duly
executed and with such proof of authenticity of signatures as the Corporation
may reasonably require.
SECTION 5.3. Holders of Record. Prior to due presentment for
registration of transfer, the Corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all the
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rights and powers of a complete owner thereof, notwithstanding notice to the
contrary.
SECTION 5.4. Lost, Destroyed, Mutilated or Stolen Certificates. The
Corporation shall issue a new certificate of stock or uncertificated shares to
replace a certificate theretofore issued by it alleged to have been lost,
destroyed, mutilated or stolen, if the owner or his legal representative (i)
submits a written request for the replacement of the certificate, together with
the mutilated certificate or such evidence as the Board of Directors may deem
satisfactory of the loss, destruction or theft of the certificate, and such
request is received by the Corporation before the Corporation has notice that
the certificate has been acquired by a bona fide purchaser, (ii) files with the
Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, destruction,
mutilation or theft of any such certificate or the issuance of any such new
certificate and (iii) satisfies such other terms and conditions as the Board of
Directors may from time to time prescribe.
ARTICLE SIX
MISCELLANEOUS
SECTION 6.1. Waiver of Notice. Whenever notice is required to be
given by the Certificate of Incorporation, the Bylaws or any provision of the
General Corporation Law of the State of Delaware, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time
required for such notice, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person 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.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the shareholders, directors or members of a
committee of directors need be specified in any written waiver of notice.
SECTION 6.2. Fiscal Year. The fiscal year of the Corporation shall
end on September 30 in each year.
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SECTION 6.3. Corporate Seal. The corporate seal shall be in such
form as the Board of Directors may from time to time prescribe, and the same may
be used by causing it or a facsimile thereof to be impressed or affixed or in
any other manner reproduced.
ARTICLE SEVEN
AMENDMENT OF BYLAWS
SECTION 7.1. Amendment. The Bylaws may be adopted, amended or
repealed by the shareholders of the Corporation or by the Board of Directors by
a majority vote of the whole Board of Directors.
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