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AMENDED AND RESTATED
BY-LAWS
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ANADIGICS, INC.
ARTICLE I.
OFFICES
SECTION 1. The registered office of ANADIGICS, Inc., a Delaware corporation
(the "Corporation"), shall be located in Wilmington, Delaware.
SECTION 2. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or as the business of the Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of the Corporation shall
be held at such place, within or without the State of Delaware, at such time and
on such day of each year, as may be determined by the Board of Directors and as
such shall be designated in the notice of said meeting, for the purpose of
electing directors and for the transaction of such other business as may
properly be brought before the meeting. If for any reason the annual meeting
shall not be held during the period designated herein, the Board of Directors
shall cause the annual meeting to be held as soon thereafter as may be
convenient.
SECTION 2. Special meetings of the stockholders of the Corporation for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be held at any place, within or without the
State of Delaware, and may only be called by resolution of the Board of
Directors.
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SECTION 3. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any other change, conversion or exchange of stock or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action. If the Board
shall not fix such a record date, (i) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and (ii) in any case involving
the determination of stockholders for any purpose other than notice of or voting
at a meeting of stockholders, the record date for determining stockholders for
such purpose shall be the close of business on the day on which the Board of
Directors shall adopt the resolution relating thereto. Determination of
stockholders entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of such meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 4. The holders of a majority of the shares of capital stock issued
and outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the stockholders of the Corporation for
the transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If a quorum is present or represented, the
affirmative vote of a majority of the shares of capital stock present or
represented at the meeting shall be the act of the stockholders of the
Corporation unless the vote of a greater number of shares of stock is required
by law or by the Certificate of Incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders of the
Corporation, the stockholders present in person or represented by proxy shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the meeting as
originally notified.
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SECTION 5. The Board of Directors of the Corporation shall be entitled to
make such rules or regulations for the conduct of meetings of stockholders as it
shall deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to stockholders of
record of the Corporation and their duly authorized and constituted proxies, and
such other persons as the chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting and matters which are to be voted
on by ballot. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with rules of parliamentary procedure.
SECTION 6. In order to properly submit any business to an annual meeting of
stockholders, a stockholder must give timely notice in writing to the secretary
of the Corporation. To be considered timely, a stockholder's notice must be
delivered either in person or by United States certified mail, postage prepaid,
and received at the principal executive offices of the Corporation (a) not less
than 90 days nor more than 120 days before the first anniversary date of the
Corporation's proxy statement in connection with the last annual meeting of
stockholders or (b) if no annual meeting was held in the previous year or the
date of the applicable annual meeting has been changed by more than 30 days from
the date contemplated at the time of the previous year's proxy statement, not
less than a reasonable time, as determined by the Board of Directors, prior to
the date of the applicable meeting.
Nomination of persons for election to the Board of Directors may be made by
the Board of Directors or any committee designated by the Board of Directors or
by any stockholder entitled to vote for the election of directors at the
applicable meeting of stockholders. However, nominations other than those made
by the Board of Directors or its designated committee must comply with the
procedures set forth in this Section 6, and no person shall be eligible for
election as a director
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unless nominated in accordance with the terms of this Section 6. A stockholder
may nominate a person or persons for election to the Board of Directors by
giving written notice to the secretary of the Corporation in accordance with the
procedures set forth above.
The secretary of the Corporation shall deliver any stockholder proposals
and nominations received in a timely manner for review by the Board of Directors
or a committee designated by the Board of Directors.
A stockholder's notice to submit business to an annual meeting of
stockholders shall set forth (i) the name and address of the stockholder, (ii)
the class and number of shares of stock beneficially owned by such stockholder,
(iii) the name in which such shares are registered on the stock transfer books
of the Corporation, (iv) a representation that the stockholder intends to appear
at the meeting in person or by proxy to submit the business specified in such
notice, (v) any material interest of the stockholder in the business to be
submitted and (vi) a brief description of the business desired to be submitted
to the annual meeting, including the complete text of any resolutions to be
presented at the annual meeting, and the reasons for conducting such business at
the annual meeting. In addition, the stockholder making such proposal shall
promptly provide any other information reasonably requested by the Corporation.
In addition to the information required above to be given by a stockholder
who intends to submit business to an annual meeting of stockholders, if the
business to be submitted is the nomination of a person or persons for election
to the Board of Directors then such stockholder's notice must also set forth, as
to each person whom the stockholder proposes to nominate for election as a
director, (a) the name, age, business address and, if known, residence address
of such person, (b) the principal occupation or employment of such person, (c)
the class and number of shares of stock of the Corporation which are
beneficially owned by such person, (d) any other information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors or is otherwise required by the rules and regulations of the
Securities and Exchange Commission promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), (e) the written consent of such person
to be named in the proxy statement as a nominee and to serve as a director if
elected and (f) a description of all arrangements or understandings between such
stockholder and each nominee and any other person or persons (naming such person
or per-
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sons) pursuant to which the nomination or nominations are to be made by such
stockholder.
Any person nominated for election as director by the Board of Directors or
any committee designated by the Board of Directors shall, upon the request of
the Board of Directors or such committee, furnish to the secretary of the
Corporation all such information pertaining to such person that is required to
be set forth in a stockholder's notice of nomination.
Notwithstanding the foregoing provisions of this Section 6, a stockholder
who seeks to have any proposal included in the Corporation's proxy statement
shall comply with the requirements of Regulation 14A under the Exchange Act.
SECTION 7. 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. Nominations of persons for election to the
Board of Directors at a special meeting of stockholders at which directors are
to be elected pursuant to the Corporation's notice of meeting may be made only
(i) by the Board of Directors or a committee designated by the Board of
Directors, or (ii) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who was a stockholder of record at the time of the giving of notice
of such meeting and who shall be entitled to vote at the meeting and who
complies with the provisions set forth in this Section 7. Any stockholder
proposing to nominate a director at such special meeting must give notice
thereof containing the information required by Section 6 hereof in case of a
nomination to be made by a stockholder at an annual meeting of stockholders to
the secretary of the Corporation not more than 120 days prior to such special
meeting and not later than the later of 90 days prior to such special meeting or
the 10th day following the day on which public announcement (by means of a press
release reported by 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 the Exchange Act) 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.
SECTION 8. The Board of Directors, in advance of any meeting of the
stockholders, may appoint one or more inspectors to act at the meeting. If
inspectors are not so appointed, the person presiding at the meeting may appoint
one or more inspec-
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tors. If any person so appointed fails to appear or act, the vacancy may be
filled by appointment made by the Board of Directors in advance of the meeting
or at the meeting by the person presiding thereat. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at the meeting with strict
impartiality and according to the best of such person's ability. The inspectors
so appointed, if any, shall determine the number of shares outstanding, the
shares represented at the meeting, the existence of a quorum and the
authenticity, validity and effect of proxies and shall receive votes, ballots,
waivers, releases, or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots, waivers, releases, or consents, determine and announce the results and
do such acts as are proper to conduct the election or vote with fairness to all
stockholders. On request of the person presiding at the meeting, the inspectors
shall make a report in writing of any challenge, question or matter determined
by them and execute a certificate of any fact found by them. Any report or
certificate made by them shall be prima facie evidence of the facts stated and
of the vote as certified by them.
SECTION 9. Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of the stockholders of the Corporation and may not be effected by a consent in
writing in lieu of a meeting of such stockholders.
ARTICLE III.
DIRECTORS
SECTION 1. The business and affairs of the Company shall be managed by or
under the direction of a Board of Directors consisting of such number of
directors as is determined from time to time by resolution adopted by the
affirmative vote of a majority of the entire Board of Directors; provided,
however, that in no event shall the number of directors be less than three nor
more than twelve. The directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third (1/3) of the total number of directors constituting the
entire Board of Directors. The initial classes shall be elected as follows:
Class I directors shall be elected for a one-year term, Class II directors for a
two-year term and Class III directors for a three-year term. At each succeeding
annual meeting of the stockholders of the Corpora-
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tion, successors to the class of directors whose term expires at that annual
meeting shall be elected for three-year terms. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. A director shall
hold office until the annual meeting for the year in which his or her term
expires and until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Directors need not be stockholders of the Corporation.
SECTION 2. Except as otherwise required by law, any vacancy on the Board of
Directors that results from an increase in the number of directors and any other
vacancy occurring in the Board of Directors shall be filled by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of his or
her predecessor. A vacancy created by the removal of a director by the
stockholders of the Corporation may be filled by the stockholders.
SECTION 3. The first meeting of each newly elected Board of Directors shall
be held at such time and place as shall be announced at the annual meeting of
the stockholders of the Corporation and no other notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or, in the event such meeting is
not held at the time and place so fixed by the stockholders of the Corporation,
the meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or
as shall be specified in a written waiver signed by all of the directors.
SECTION 4. Regular meetings of the Board of Directors may be held upon such
notice, or without notice, and at such time and at such place as shall from time
to time be determined by the Board of Directors.
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SECTION 5. Special meetings of the Board of Directors may be called by the
President or the Chairman of the Board on two days' notice to each director,
either personally or by mail or by telegram; special meetings shall be called by
the President or Secretary in like manner and on like notice on the written
request of two directors.
SECTION 6. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting 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 Board
of Directors need be specified in the notice or waiver of notice of such
meeting.
SECTION 7. At all meetings of the board, a majority of the total number of
directors then constituting the whole board but in no event less than two
directors shall constitute a quorum for the transaction of business, and 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, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation or by
these By-Laws. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
SECTION 8. Unless otherwise restricted by the Certificate of Incorporation
or by 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 prior to such action a written consent thereto is signed by all
members of the board or of such committee, as the case may be, and such written
consent is filed with the minutes of proceedings of the Board of Directors or
committee thereof. Meetings by telephone conference of the Board of Directors or
of any committee thereof shall be valid meetings for the purpose of taking any
action which would otherwise be taken at a regularly convened meeting; provided,
that actions taken during a telephonic conference shall be valid only if it is
established that each member of the meeting convened by telephonic conference is
able to hear each other member.
SECTION 9. The Board of Directors may, by resolution passed by a majority
of the whole Board of Directors, designate one or more committees, each
committee to consist of two or
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more of the directors of the Corporation, which, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of Directors in
the management of the business and affairs of the Corporation and may authorize
the seal of the Corporation to be affixed to all papers which may require it.
Such committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors.
Notwithstanding the immediately preceding paragraph, the Board of Directors
of the Corporation shall appoint an Audit Committee and a Compensation
Committee. The Audit Committee shall consist of at least two directors and shall
review internal and external audit conditions, procedures and results and
formulate and report to the Board of Directors policies with regard thereto. The
Compensation Committee shall consist of at least two directors, none of which is
an officer of the Corporation, and shall consider and monitor the Corporation's
compensation policies and practices and the implementation thereof. In addition,
such committee shall review the compensation of the officers of the Corporation
and shall also administer plans of the Corporation under which stock of the
Corporation is issuable to employees upon exercise of stock options, and all
executive incentive compensation plans.
SECTION 10. For their services as directors or as members of committees,
non-employee directors shall be entitled to and shall receive such compensation,
reimbursement of expenses, attendance fees and other allowances as determined by
resolution of the Board of Directors.
ARTICLE IV.
NOTICES
SECTION 1. Whenever, under the provisions of statute or of the Certificate
of Incorporation or of these By-Laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder, at his address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegram.
SECTION 2. Whenever any notice is required to be given under the provisions
of statute or of the Certificate of
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Incorporation or of these By-Laws, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
ARTICLE V.
OFFICERS
SECTION 1. The officers of the Corporation shall be chosen by the Board of
Directors and shall be a president, one or more vice-presidents, a secretary and
a treasurer. In the discretion of the Board of Directors, there may also be a
chairman or one or more vice-chairmen of the Board of Directors. The Board of
Directors may also choose one or more assistant secretaries and assistant
treasurers and such subordinate officers as may, from time to time, be deemed
desirable. Two or more offices may be held by the same person except the offices
of president and secretary or the offices of president and vice-president.
SECTION 2. The Board of Directors shall elect officers of the Corporation
at its first meeting after each annual meeting of the stockholders of the
Corporation.
SECTION 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors.
SECTION 4. The officers of the Corporation shall hold office until their
successors are chosen and qualified. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
CHAIRMAN OF THE BOARD
SECTION 5. The chairman of the Board of Directors, if there be a chairman,
shall be chosen from among the directors, shall preside at all meetings of the
stockholders of the Corporation and the Board of Directors, and shall have such
other powers and duties as may from time to time be assigned to him by the Board
of Directors. Any vice-chairman of the Board of Directors, if there be any
vice-chairman or vice-chairmen, shall be chosen from among the directors and
shall have such
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powers and duties as may from time to time be assigned to him by the Board of
Directors.
PRESIDENT
SECTION 6. The president shall be the chief executive officer of the
Corporation. In the absence of the chairman of the board, or if there be no
chairman, the president shall preside at all meetings of the stockholders of the
Corporation and the Board of Directors; the president shall have general and
active management of the business of the Corporation, subject to the direction
of the Board of Directors, and shall see that all orders and resolutions of the
Board of Directors are carried into effect, and shall perform all duties
incident to the office of a president of a corporation, and such other duties as
from time to time may be assigned by the Board of Directors.
VICE-PRESIDENTS
SECTION 7. Any vice-presidents elected shall have such duties as the Board
of Directors or president may from time to time prescribe, and shall, except as
the Board of Directors may otherwise direct, perform such duties under the
general supervision of the president.
SECRETARY
SECTION 8. The secretary shall take minutes of the proceedings of the
stockholders and the Board of Directors and record the same in a suitable book
for preservation. The secretary shall give notice of all regular and duly called
special meetings of the stockholders of the Corporation and the Board of
Directors. The secretary shall have charge of and keep the seal of the
Corporation, and shall affix the seal, attested by his signature, to such
instruments as may require the same. Unless the Board of Directors shall have
appointed a transfer agent, the secretary shall have charge of the certificate
books, transfer books and stock ledgers, and shall prepare voting lists prior to
all meetings of the stockholders of the Corporation. The secretary shall have
charge of such other books and papers as the Board of Directors may direct and
shall perform such other duties as may be prescribed from time to time by the
Board of Directors or the president.
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ASSISTANT SECRETARY
SECTION 9. The assistant secretary, if there shall be one, or, if there
shall be more than one, the assistant secretaries in the order determined by the
Board of Directors, shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary and shall perform
such other duties and have such other powers as the Board of Directors or the
officer to whom such assistant secretary reports may from time to time
prescribe.
TREASURER
SECTION 10. The treasurer shall have custody of the funds, securities and
other assets of the Corporation. The treasurer shall keep a full and accurate
record of all receipts and disbursements of the Corporation, and shall deposit
or cause to be deposited in the name of the Corporation all monies or other
valuable effects in such banks, trust companies or other depositories as may
from time to time be selected by the Board of Directors. The treasurer shall
have power to make and endorse notes and pay out monies on check without
countersignature and shall perform such other duties as may be prescribed by the
Board of Directors or the president.
ASSISTANT TREASURER
SECTION 11. The assistant treasurer, if there shall be one, or, if there
shall be more than one, the assistant treasurers in the order determined by the
Board of Directors, shall, in the absence or disability of the treasurer,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the Board of Directors or the
officer to whom such assistant treasurer reports may from time to time
prescribe.
ARTICLE VI.
CERTIFICATES FOR SHARES
LOST CERTIFICATES
SECTION 1. The Board of Directors may direct a new certificate to be issued
in place of any certificate theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such
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terms and conditions as it deems expedient, and may require such indemnities as
it deems adequate, to protect the Corporation from any claim that may be made
against it with respect to any such certificate alleged to have been lost,
stolen or destroyed.
TRANSFER OF SHARES
SECTION 2. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate representing shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto, and the old
certificate cancelled and the transaction recorded upon the books of the
Corporation
REGISTERED STOCKHOLDERS
SECTION 3. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and 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 otherwise provided by the laws of the
State of Delaware.
SIGNING AUTHORITY
SECTION 4. All contracts, agreements, assignments, transfers, deeds, stock
powers or other instruments of the Corporation may be executed and delivered by
the president or any vice-president or by such other officer or officers, or
agent or agents, of the Corporation as shall be thereunto authorized from time
to time either by the Board of Directors or by power of attorney executed by any
person pursuant to authority granted by the Board of Directors; and the
secretary or any assistant secretary or the treasurer or any assistant treasurer
may affix the seal of the Corporation thereto and attest same.
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ARTICLE VII.
GENERAL PROVISIONS
CHECKS
SECTION 1. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
FISCAL YEAR
SECTION 2. The fiscal year of the Corporation shall be fixed by resolution
of the Board of Directors.
SEAL
SECTION 3. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
INDEMNIFICATION
SECTION 4. The Corporation shall indemnify its officers, directors,
employees and agents to the fullest extent permitted by the General Corporation
Law of Delaware, as the same exists or may be hereafter amended (but, in the
case of any amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment).
ARTICLE VIII.
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or repealed or new By-Laws
may be adopted (a) at any regular or special meeting of the stockholders of the
Corporation by the affirmative vote of 80% of the outstanding capital stock
entitled to vote at such meeting, provided that notice of the proposed
alteration, amendment or repeal be contained in the notice of such meeting, or
(b) by the affirmative vote of a majority of the Board of Directors at any
regular or special meeting of the board. The stockholders of the Corporation
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shall have authority to change or repeal any By-Laws adopted by the Board of
Directors.
Effective: July 27, 2000
