AMENDED BY-LAWS
OF
GENERAL DATACOMM INDUSTRIES, INC.
(A Delaware Corporation)
As of July 22, 1999
ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or in the name
of, the corporation by the Chairman or Vice-Chairman of the Board of Directors,
if any, or by the President or a Vice-President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation certifying the number of shares owned by him in the corporation. If
such certificate is countersigned by a transfer agent other than the corporation
or its employee or by a registrar other than the corporation or its employee,
any other signature on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a 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 he were such officer, transfer agent, or
registrar at the date of issue.
Whenever the corporation shall be authorized to issue more
than one class of stock or more than one series of any class of stock, and
whenever the corporation shall issue any shares of its stock as partly paid
stock, the certificates representing shares of any such class or series or
of any such partly paid stock shall set forth thereon the statements
prescribed by the General Corporation Law. Any restrictions on the transfer
or registration of transfer of any shares of stock of any class or series
shall be noted conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock in
place of any certificate theretofore issued by it, alleged to have been
lost, stolen, or destroyed, and the Board of Directors may require the owner
of any lost, stolen, or destroyed certificate, or his legal representative,
to give the corporation a bond sufficient to indemnify the corporation
against any claim that may be made against it on account of the alleged
loss, theft, or destruction of any such certificate or the issuance of any
such new certificate.
2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall
not be required to, issue fractions of a share. In lieu thereof it shall
either pay in cash the fair value of fractions of a share, as determined by
the Board of Directors, to those entitled thereto or issue scrip or
fractional warrants in registered or bearer form over the manual or
facsimile signature of an officer of the corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip or
fractional warrants shall not entitle the holder to any rights of a
stockholder except as therein provided. Such scrip or fractional warrants
may be issued subject to the condition that the same shall become void if
not exchanged for certificates representing full shares of stock before a
specified date, or subject to the condition that the shares of stock for
which such scrip or fractional warrants are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of such
scrip or fractional warrants, or subject to any other conditions which the
Board of Directors may determine.
3. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock, if
any, transfers or registration of transfers of shares of stock of the
corporation shall be made only on the stock ledger of the corporation by the
registered holder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary of the corporation or
with a transfer agent or a registrar, if any, and on surrender of the
certificate or certificates for such shares of stock properly endorsed and
the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of
determining the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or for the purpose of
determining stockholders entitled to receive payment of any dividend or
other distribution or the 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 directors may fix, in
advance, a date as the record date for any such determination of
stockholders. Such date shall not be more than sixty days nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. If no record date is fixed, the record date for the
determination of stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at 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; the
record date for determining stockholders for any other purpose shall be at
the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. When a determination of stockholders of record
entitled to notice of or to vote at any meeting of stockholders has been
made as provided in this paragraph, such determination shall apply to any
adjournment thereof; provided, however, that the Board of Directors may fix
a new record date for the adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of
the right to notice of a meeting of stockholders or a waiver thereof or to
participate or vote thereat, as the case may be, the term "share" or
"shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a
holder or holders of record of outstanding shares of stock when the
corporation is authorized to issue only one class of shares of stock, and
said reference is also intended to include any outstanding share or shares
of stock and any holder or holders of record of outstanding shares of stock
of any class upon which or upon whom the certificate of incorporation
confers such rights where there are two or
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more classes or series of shares of stock or upon which or upon whom the General
Corporation Law confers such rights notwithstanding that the certificate of
incorporation may provide for more than one class or series of shares of stock,
one or more of which are limited or denied such rights thereunder; provided,
however, that no such right shall vest in the event of an increase or a decrease
in the authorized number of shares of stock of any class or series which is
otherwise denied voting rights under the provisions of the certificate of
incorporation.
6. STOCKHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date and
at the time fixed, from time to time, by the directors. A special meeting
shall be held on the date and at the time fixed by the directors.
- PLACE. Annual meetings and special meetings shall be
held at such place, within or without the State of Delaware, as the
directors may, from time to time fix. Whenever the directors shall fail to
fix such place, the meeting shall be held at the registered office of the
corporation in the State of Delaware.
- CALL. Annual meetings and special meetings may be
called by the directors or by any officer instructed by the directors to
call the meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all
meetings shall be given, stating the place, date, and hour of the meeting
and stating the place within the city or other municipality or community at
which the list of stockholders of the corporation may be examined. The
notice of an annual meeting shall state that the meeting is called for the
election of directors and for the transaction of other business which may
properly come before the meeting, and shall, (if any other action which
could be taken at a special meeting is to be taken at such annual meeting)
state the purpose or purposes. The notice of a special meeting shall in all
instances state the purpose or purposes for which the meeting is called. If
any action is proposed to be taken which would, if taken, entitle
stockholders to receive payment for their shares of stock, the notice shall
include a statement of that purpose and to that effect. Except as otherwise
provided by the General Corporation Law, a copy of the notice of any meeting
shall be given, personally or by mail, not less than ten days nor more than
sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed to each
stockholder at his record address or at such other address which he may have
furnished by request in writing to the Secretary of the corporation. Notice
by mail shall be deemed to be given when deposited, with postage thereon
prepaid, in the United States mail. If a meeting is adjourned to another
time, not more than thirty days hence, and/or to another place, and if an
announcement of the adjourned time and/or place is made at the meeting, it
shall not be necessary to give notice of the adjourned meeting unless the
directors, after adjournment, fix a new record date for the adjourned
meeting. Notice need not be given to any stockholder who submits a written
waiver of notice by him before or after the time stated therein. Attendance
of a person at a meeting of stockholders shall constitute a waiver of notice
of such meeting, except when the stockholder attends a meeting for the
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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 stockholders need be specified in any
written waiver of notice.
- STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders, 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
days prior to the meeting, either at a place within the city or other
municipality or community where the meeting is to be held, which place shall
be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. The list shall also be produced and
kept at the time and place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by this section or
the books of the corporation, or to vote at any meeting of stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and
if present and acting - the Chairman of the Board, if any, the Vice-Chairman
of the Board, if any, the President, a Vice-President, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by
the stockholders. The Secretary of the corporation, or in his absence, an
Assistant Secretary, shall act as secretary of every meeting, but if neither
the Secretary nor an Assistant Secretary is present the Chairman of the
meeting shall appoint a secretary of the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or
dissent without a meeting. Every proxy must be signed by the stockholder or
by his attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and,
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is coupled is an interest in the stock
itself or an interest in the corporation generally.
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- INSPECTORS AND JUDGES. The directors, in advance of any
meeting, may, but need not, appoint one or more inspectors of election or
judges of the vote, as the case may be, to act at the meeting or any
adjournment thereof. If an inspector or inspectors or judge or judges are
not appointed, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an inspector or judge fails to appear or act, the vacancy may
be filled by appointment made by the directors in advance of the meeting or
at the meeting by the person presiding thereat. Each inspector or judge, if
any, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector or judge at such
meeting with strict impartiality and according to the best of his ability.
The inspectors or judges, if any, shall determine the number of shares of
stock outstanding and the voting power of each, the shares of stock
represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right
to vote, count and tabulate all votes, ballots or consents, determine the
result, 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 inspector or inspectors or judge or judges, if any, shall make
a report in writing of any challenge, question or matter determined by him
or them and execute a certificate of any fact found by him or them.
- QUORUM. The holders of a majority of the outstanding shares
of stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the
meeting despite the absence of a quorum.
- VOTING. Except as may otherwise be provided by the
certificate of incorporation, each share of stock shall entitle the holder
thereof to one vote. In the election of directors, a plurality of the votes
cast shall elect. Except where a greater vote is required by the General
Corporation Law or the certificate of incorporation or By-Laws of the
corporation, any proposal submitted by a stockholder in accordance with the
rules and regulations of the Securities and Exchange Commission or otherwise
shall be authorized by a majority of the outstanding shares of stock of the
corporation entitled to vote. Any other action shall be authorized by a
majority of the votes cast except where the General Corporation Law or the
certificate of incorporation or By-Laws of the corporation prescribes a
different percentage of votes and/or a different exercise of voting power.
In the election of directors, voting need not be by ballot. Voting by ballot
shall not be required for any other corporate action except as otherwise
provided by the General Corporation Law.
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ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business of the
corporation shall be managed by the Board of Directors of the corporation.
The use of the phrase "whole board" herein refers to the total number of
directors which the corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The property, affairs and business of the corporation shall be
managed by its Board of Directors. Directors shall be divided into three
classes, each class to be determined by the directors prior to the election
of a particular class. In the event that at any time or from time to time
the number of directors is increased, the newly created directorships
resulting therefrom shall be filled by a vote of the majority of the
directors in office immediately prior to such increase and directors so
elected shall serve until the term of the class to which they are assigned
expires. Vacancies in any class of directors shall be filled by the vote of
the remaining directors, and directors so elected shall serve until the term
of such class expires. The number of directors may be fixed from time to
time by action of a majority of the directors. The number of directors may
be increased or decreased by action of the majority of the directors then in
office.
3. ELECTION AND TERM. Any director may resign at any time
upon written notice to the corporation. The Board of Directors shall consist
of such number of persons fixed from time to time by the Board of Directors
pursuant to resolution adopted by a majority of directors then in office.
Subject to the rights of holders of any series of preferred stock, any
vacancy in the Board of Directors caused by death, resignation, removal,
retirement, disqualification or any other cause (including an increase in
the number of directors) may be filled solely by resolution adopted by the
affirmative vote of a majority of the directors then in office, whether or
not such majority constitutes less than a quorum, or by a sole remaining
director. Any new directors elected to fill a vacancy on the Board of
Directors will serve for the remainder of the full term of that director for
which the vacancy occurred. No decease in the size of the Board shall have
effect of shortening the term of any incumbent director.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall
fix, except that the first meeting of a newly elected Board shall be held as
soon after its election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
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- CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction of the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, of the President or of a majority of the directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be
given for special meetings in sufficient time for the convenient assembly of
the directors thereat. The notice of any meeting need not specify the
purpose of the meeting. Any requirement of furnishing a notice shall be
waived by any director who signs a written waiver of such notice before or
after the time stated therein.
- QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such
majority, whereupon a majority of the directors in office shall constitute a
quorum, provided, that such majority shall constitute at least one-third of
the whole Board. A majority of the directors present, whether or not a
quorum is present, may adjourn a meeting to another time and place. Except
as herein otherwise provided, and except as otherwise provided by the
General Corporation Law, the act of the Board shall be the act by vote of a
majority of the directors present at a meeting, a quorum being present. The
quorum and voting provisions herein stated shall not be construed as
conflicting with any provisions of the General Corporation Law and these
By-Laws which govern a meeting of directors held to fill vacancies and newly
created directorships in the Board.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if
any and if present and acting, shall preside at all meetings. Otherwise,
the Vice-Chairman of the Board, if any and if present and acting, or the
President, if present and acting, or any other director chosen by the Board,
shall preside.
5. REMOVAL OF DIRECTORS. Subject to the rights of holders of a
class or series of preferred stock to elect directors or to remove directors
so elected, a duly elected director of the corporation may be removed from
such position, with or without cause, only by the affirmative vote of the
holders of at least eighty (80) percent in voting power of the outstanding
capital stock of the corporation entitled to vote in the election of
directors, voting as a single class. A special meeting of stockholders may
be called by holders of shares outstanding entitled to exercise a majority
of the voting power of the corporation in the election of directors, solely
for the purpose of removing a director or directors. A meeting called by
stockholders for the removal of a director or directors shall be called upon
the request in writing to the Chairman, President or Secretary, sent by
registered mail or delivered to the officer in person, by a holder or
holders of shares outstanding entitled to exercise a majority of the voting
power of the corporation in the election of directors. Such officer
forthwith shall cause notice to be given to the stockholders entitled to
vote that a meeting will be held at a time, fixed by such officer, not less
than 30 and not more than 60 days after the receipt of the request. If the
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notice is not given within 20 days after the date of delivery, or the date
of the mailing, of the request, the person or persons calling the meeting
may fix the time of meeting and give the notice in the manner provided
herein.
6. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of two or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
of the committee. Any such committee, to the extent provided in the
resolution of the Board, 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. In the absence or disqualification of any
member of any such committee or committees, 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.
7. ACTION IN WRITING. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may
be taken without a meeting if all members of the Board or 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 or committee.
ARTICLE III
OFFICERS
The directors shall elect a President, a Secretary, and a
Treasurer, and may elect a Chairman of the Board of Directors, a
Vice-Chairman thereof, and one or more Vice-Presidents, Assistant
Secretaries, and Assistant Treasurers, and may elect or appoint such other
officers and agents as are desired. The President may but need not be a
director. Any number of offices may be held by the same person.
Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board
of Directors following the next annual meeting of stockholders and until his
successor has been elected and qualified. Any officer may resign at any time
upon written notice.
Officers shall have the powers and duties defined in the
resolutions appointing them; provided, that the Secretary shall record all
proceedings of the meetings or of the written actions of the directors, and
any committee thereof in a book to be kept for that purpose.
The Board of Directors may remove any officer for cause or
without cause.
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ARTICLE IV
CORPORATE SEAL
The corporate seal shall be in such form as the Board of
Directors shall prescribe.
ARTICLE V
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VI
CONTROL OVER BY-LAWS
The power to amend, alter, and repeal these By-Laws and to
adopt new By-Laws shall be vested in the Board of Directors; provided, that
the Board of Directors may delegate such power, in whole or in part, to the
stockholders.
ARTICLE VII
BY-LAW VOTED BY PLURALITY VOTE AT ANNUAL MEETING OF
STOCKHOLDERS HELD ON FEBRUARY 4, 1999 (The Board of Directors has reserved
the right to challenge or repeal this By-Law on the grounds of illegality
under Delaware law and other reasons, as well as the status of the proponent
as a stockholder).
OPTION REPRICING. The Company shall not reprice any stock
options already issued and outstanding to a lower strike price at any time
during the term of such option, without the prior approval of shareholders.
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