EXHIBIT 3.2
CERTIFICATE OF ADOPTION OF BYLAWS
OF
HARMONIC INC.
ADOPTION BY SOLE INCORPORATOR
The undersigned person appointed in the certificate of incorporation to
act as the sole incorporator of Harmonic Inc. hereby adopts the foregoing bylaws
as the Bylaws of the corporation.
Executed this 18th day of March, 1999.
/s/ ROBERT G. DAY
----------------------------------------
Robert G. Day, Sole Incorporator
CERTIFICATE BY SECRETARY OF ADOPTION BY SOLE INCORPORATOR
The undersigned hereby certifies that he is the duly elected qualified,
and acting Secretary of Harmonic Inc. and that the foregoing Bylaws, comprising
nineteen (19) pages, were adopted as the Bylaws of the corporation on March 18,
1999, by the person appointed in the certificate of incorporation to act as the
sole incorporator of the corporation.
/s/ ROBERT G. DAY
----------------------------------------
Robert G. Day, Secretary
CERTIFICATE OF AMENDMENT
OF BYLAWS OF
HARMONIC LIGHTWAVES, INC.
The undersigned, being an Assistant Secretary of Harmonic Lightwaves,
Inc., a Delaware corporation, hereby certifies as follows:
1. That the first sentence of Section 3.2 of Article III of the Bylaws
of the corporation is hereby amended to read in its entirety as follows:
"The board of directors shall consist of six (6) members."
2. The amendment was adopted by the stockholders of the corporation at
the Annual Meeting of Stockholders held on April 30, 1997.
Dated: April 30, 1997
/s/ PATRICK J. SCHULTHEIS
-------------------------------
Patrick J. Schultheis,
Assistant Secretary
BYLAWS
OF
HARMONIC LIGHTWAVES, INC.
(A DELAWARE CORPORATION)
BYLAWS OF
HARMONIC LIGHTWAVES, INC.
(a Delaware corporation)
TABLE OF CONTENTS
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Page
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ARTICLE I - CORPORATE OFFICES.............................................................. 1
1.1 REGISTERED OFFICE............................................................ 1
1.2 OTHER OFFICES................................................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS....................................................... 1
2.1 PLACE OF MEETINGS............................................................ 1
2.2 ANNUAL MEETING............................................................... 1
2.3 SPECIAL MEETING.............................................................. 1
2.4 NOTICE OF STOCKHOLDERS' MEETINGS............................................. 2
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS.............. 2
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE................................. 3
2.7 QUORUM....................................................................... 3
2.8 ADJOURNED MEETING; NOTICE.................................................... 4
2.9 VOTING....................................................................... 4
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT............................ 4
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING...................... 5
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING................................... 5
2.13 PROXIES...................................................................... 6
2.14 ORGANIZATION................................................................. 6
2.15 LIST OF STOCKHOLDERS ENTITLED TO VOTE........................................ 6
2.16 INSPECTORS OF ELECTION....................................................... 6
ARTICLE III - DIRECTORS...................................................................... 7
3.1 POWERS....................................................................... 7
3.2 NUMBER OF DIRECTORS.......................................................... 7
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS..................................... 7
3.4 RESIGNATION AND VACANCIES.................................................... 7
3.5 REMOVAL OF DIRECTORS......................................................... 8
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE..................................... 8
3.7 FIRST MEETINGS............................................................... 9
3.8 REGULAR MEETINGS............................................................. 9
3.9 SPECIAL MEETINGS; NOTICE..................................................... 9
3.10 QUORUM....................................................................... 10
3.11 WAIVER OF NOTICE............................................................. 10
3.12 ADJOURNMENT.................................................................. 10
3.13 NOTICE OF ADJOURNMENT........................................................ 10
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING............................ 10
</Table>
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TABLE OF CONTENTS
(Continued)
<Table>
<Caption>
PAGE
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3.15 FEES AND COMPENSATION OF DIRECTORS............................... 10
3.16 APPROVAL OF LOANS TO OFFICERS.................................... 10
3.17 SOLE DIRECTOR PROVIDED BY CERTIFICATE OF INCORPORATION........... 11
ARTICLE IV - COMMITTEES......................................................... 11
4.1 COMMITTEES OF DIRECTORS.......................................... 11
4.2 MEETINGS AND ACTION OF COMMITTEES................................ 11
4.3 COMMITTEE MINUTES................................................ 12
ARTICLE V - OFFICERS............................................................ 12
5.1 OFFICERS......................................................... 12
5.2 ELECTION OF OFFICERS............................................. 12
5.3 SUBORDINATE OFFICERS............................................. 12
5.4 REMOVAL AND RESIGNATION OF OFFICERS.............................. 12
5.5 VACANCIES IN OFFICES............................................. 13
5.6 CHAIRMAN OF THE BOARD............................................ 13
5.7 PRESIDENT........................................................ 13
5.8 VICE PRESIDENTS.................................................. 13
5.9 SECRETARY........................................................ 13
5.10 CHIEF FINANCIAL OFFICER.......................................... 14
5.11 ASSISTANT SECRETARY.............................................. 14
5.12 ADMINISTRATIVE OFFICERS.......................................... 14
5.13 AUTHORITY AND DUTIES OF OFFICERS................................. 15
ARTICLE VI - INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER
AGENTS..................................................................... 15
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS........................ 15
6.2 INDEMNIFICATION OF OTHERS........................................ 15
6.3 INSURANCE........................................................ 16
ARTICLE VII - RECORDS AND REPORTS............................................... 16
7.1 MAINTENANCE AND INSPECTION OF RECORDS............................ 16
7.2 INSPECTION BY DIRECTORS.......................................... 16
7.3 ANNUAL STATEMENT TO STOCKHOLDERS................................. 16
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS................... 17
7.5 CERTIFICATION AND INSPECTION OF BYLAWS........................... 17
ARTICLE VIII - GENERAL MATTERS.................................................. 17
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING............ 17
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS........................ 17
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED................ 17
</Table>
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TABLE OF CONTENTS
(Continued)
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8.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES............... 18
8.5 SPECIAL DESIGNATION ON CERTIFICATES............................ 18
8.6 LOST CERTIFICATES.............................................. 19
8.7 TRANSFER AGENTS AND REGISTRARS................................. 19
8.8 CONSTRUCTION; DEFINITIONS...................................... 19
ARTICLE IX - AMENDMENTS....................................................... 19
ARTICLE X - DISSOLUTION....................................................... 19
ARTICLE XI - CUSTODIAN........................................................ 20
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES.................... 20
11.2 DUTIES OF CUSTODIAN............................................ 20
</Table>
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BYLAWS
OF
HARMONIC LIGHTWAVES, INC.
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be fixed in the certificate
of incorporation of the corporation.
1.2 OTHER OFFICES
The board of directors may at any time establish branch or subordinate
offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETING OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place within or outside the
State of Delaware designated by the board of directors. In the absence of any
such designation, stockholders' meetings shall be held at the principal
executive office of the corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date and
at a time designated by the board of directors. In the absence of such
designation, the annual meeting of stockholders shall be held on the first
Tuesday in May in each year at 9:00 a.m. However, if such day falls on a legal
holiday, then the meeting shall be held at the same time and place on the next
succeeding full business day. At the meeting, directors shall be elected, and
any other proper business may be transacted.
2.3 SPECIAL MEETING
A special meeting of the stockholders may be called at any time by the
board of directors, or by the chairman of the board, or by the president, or by
one or more stockholders holding shares in the aggregate entitled to cast not
less than ten percent (10%) of the votes of all shares of stock owned by
stockholders entitled to vote at that meeting.
If a special meeting is called by any person or persons other than the
board of directors or the president or the chairman of the board, then the
request shall be in writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile
transmission to the chairman of the board, the president, or the secretary of
the corporation. No business may be transacted at such special meeting otherwise
than specified in such notice. The
officer receiving the request shall cause notice to be promptly given to the
stockholders entitled to vote, in accordance with the provisions of Sections 2.4
and 2.6 of these bylaws, that a meeting will be held at the time requested by
the person or persons calling the meeting, so long as that time is not less than
thirty-five (35) nor more than sixty (60) days after the receipt of the request.
If the notice is not given within twenty (20) days after receipt of the request,
then the person or persons requesting the meeting may give the notice. Nothing
contained in this paragraph of this Section 2.3 shall be construed as limiting,
fixing or affecting the time when a meeting of stockholders called by action of
the board of directors may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings of stockholders shall be sent or otherwise given
in accordance with Section 2.5 of these bylaws not less than ten (10) nor more
than sixty (60) days before the date of the meeting. The notice shall specify
the place, date and hour of the meeting and (i) in the case of a special
meeting, the purpose or purposes for which the meeting is called (no business
other than that specified in the notice may be transacted) or (ii) in the case
of the annual meeting, those matters which the board of directors, at the time
of giving the notice, intends to present for action by the stockholders (but
any proper matter may be presented at the meeting for such action). The notice
of any meeting at which directors are to be elected shall include the name of
any nominee or nominees who, at the time of the notice, the board intends to
present for election.
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS
(a) To be properly brought before an annual meeting or special
meeting, nominations for the election of directors or other business must be
(i) specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the board of directors, (ii) otherwise properly brought
before the meeting by or at the direction of the board of directors or (iii)
otherwise properly brought before the meeting by a stockholder.
(b) For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
corporation not less than one hundred twenty (120) calendar days in advance of
the date specified in the corporation's proxy statement released to stockholders
in connection with the previous year's annual meeting of stockholders; provided,
however, that in the event that no annual meeting was held in the previous year
or the date of the annual meeting has been changed by more than thirty (30) days
from the date contemplated at the time of the previous year's proxy statement,
notice by the stockholder to be timely must be so received a reasonable time
before the solicitation is made. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting: (i) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the corporation's books,
of the stockholder proposing such business, (iii) the class and number of shares
of the corporation which are beneficially owned by the stockholder, (iv) any
material interest of the stockholder in such business and (v) any other
information that is required to be provided by the stockholder pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), in his capacity as a proponent to a stockholder proposal.
Notwithstanding the foregoing, in order to include information with respect to
a stockholder proposal in the proxy statement and form of proxy for a
stockholders' meeting, stockholders must provide notice as required by the
regulations promulgated under the Exchange Act. Notwithstanding anything in
these bylaws to the contrary, no business shall be conducted at any annual
meeting except in accordance with the procedures set forth in this Section 2.5.
The chairman of the annual meeting shall, if the facts warrant, determine and
declare at the meeting that business was not properly brought before the
meeting and in accordance with the provisions of this Section 2.5, and, if he
should so determine, he shall so declare at the meeting that any such business
not properly brought before the meeting shall not be transacted.
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(c) Only persons who are nominated in accordance with the procedures
set forth in this paragraph (c) shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders by or at the direction of
the Board of Directors or by any stockholder of the corporation entitled to
vote in the election of directors at the meeting who complies with the notice
procedures set forth in this paragraph (c). Such nominations other than those
made by or at the direction of the Board of Directors, shall be made pursuant
to timely notice in writing to the Secretary of the corporation in accordance
with the provisions of paragraph (b) of this Section 2.5. Such stockholder's
notice shall set forth (i) as to each person, if any, whom the stockholder
proposes to nominate for election or re-election as a director: (A) the name,
age, business address and residence address of such person, (B) the principal
occupation or employment of such person, (C) the class and number of shares of
the corporation which are beneficially owned by such person, (D) a description
of all arrangements or understandings between the stockholder and each nominee
and any other person or persons (naming such person or persons) pursuant to
which the nominations are to be made by the stockholder and (E) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for elections or directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Exchange Act (including
without limitation such person's written consent to being named in the proxy
statement, if any, as a nominee and to serving as a director if elected); and
(ii) as to such stockholder giving notice, the information required to be
provided pursuant to paragraph (b) of this Section 2.5. At the request of the
Board of Directors, any person nominated by a stockholder for election as a
director shall furnish to the Secretary of the corporation that information
required to be set forth in the stockholder's notice of nomination which
pertains to the nominee. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the procedures
set forth in this paragraph (c). The chairman of the meeting shall, if the
facts warrant, determine and declare at the meeting that a nomination was not
made in accordance with the procedures prescribed by these bylaws, and if he
should so determine, he shall so declare at the meeting, and the defective
nomination shall be disregarded.
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. Notice shall be deemed to have been
given at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication. If any notice addressed to a
stockholder at the address of that stockholder appearing on the books of the
corporation is returned to the corporation by the United States Postal Service
marked to indicate that the United States Postal Service is unable to deliver
the notice to the stockholder at that address, then all future notices or
reports shall be deemed to have been duly given without further mailing if the
same shall be available to the stockholder on written demand of the stockholder
at the principal executive office of the corporation for a period of one (1)
year from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
2.7 QUORUM
The holders of a majority in voting power of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the chairman of
the meeting of (ii) the holders of a majority of the shares represented at the
meeting and entitled to vote thereat, present
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in person or represented by proxy, shall have power to adjourn the meeting in
accordance with Section 2.8 of these bylaws.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the
question is one upon which, by express provision of the laws of the State of
Delaware or of the certificate of incorporation or these bylaws, a different
vote is required, in which case such express provision shall govern and control
the decision of the question.
If a quorum be initially present, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken is approved by a
majority of the stockholders initially constituting the quorum.
2.8 ADJOURNED MEETING; NOTICE
Any stockholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by (i) the chairman of the meeting
or (ii) the vote of the holders of a majority of the shares represented at that
meeting and entitled to vote thereat, either in person or by proxy. In the
absence of a quorum, no other business may be transacted at that meeting except
as provided in Section 2.7 of these bylaws.
When a meeting is adjourned to another time and place, unless these bylaws
otherwise require, notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any business that
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.12 of these bylaws,
subject to the provisions of Sections 217 and 218 of the General Corporation Law
of Delaware (relating to voting rights of fiduciaries, pledgors and joint
owners, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of incorporation or
these bylaws, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder. Any stockholder entitled to vote on any
matter may vote part of the shares in favor of the proposal and refrain from
voting the remaining shares or, except when the matter is the election of
directors, may vote them against the proposal; but, if the stockholder fails to
specify the number of shares which the stockholder is voting affirmatively, it
will be conclusively presumed that the stockholder's approving vote is with
respect to all shares which the stockholder is entitled to vote.
2.10 VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT
The transactions of any meeting of stockholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as though they
had been taken at a meeting duly held after regular call and notice, if a
quorum be present either in person or by proxy, and if, either before or after
the meeting, each person entitled to vote, who was not present in person or by
proxy, signs a written waiver of notice or a consent to the holding of the
meeting or an approval of the minutes thereof. The waiver of notice or consent
or approval need not specify either the business to be transacted or the
purpose of any annual or special meeting of stockholders. All such waivers,
consents, and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting.
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Attendance by a person at a meeting shall also constitute a waiver of
notice of and presence at that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
is not lawfully called or convened. Attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice of the meeting but not so included, if that objection is
expressly made at the meeting.
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice
and without a vote, if a consent or consents in writing setting forth the
action so taken shall be 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. Such consents shall be delivered to the corporation by
delivery to it registered office in the state of Delaware, its principal place
of business, or an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to a corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat or entitled to give consent to corporate action
without a meeting, the board of directors may fix, in advance, a record date,
which shall not precede the date upon which the resolution fixing the record
date is adopted by the board of directors and which shall not be more than
sixty (60) days nor less than ten (10) days before the date of any such
meeting, and in such event only stockholders of record on the date so fixed are
entitled to notice and to vote, notwithstanding any transfer of any shares on
the books of the corporation after the record date.
If the board of directors does not so fix a record date:
(a) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the business day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held; and
(b) the record date for determining stockholders entitled to
give consent to corporate action in writing without a meeting, (i) when no
prior action by the board is required, shall be the day on which the first
written consent is delivered to the Corporation as provided in Section 2.3(b)
of the General Corporation Law of Delaware, or (ii) when prior action by the
board is required, shall be at the close of business on the day on which the
board adopts the resolution relating to that action.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting
unless the board of directors fixes a new record date for the adjourned meeting,
but the board of directors shall fix a new record date if the meeting is
adjourned for more than thirty (30) days from the date set for the original
meeting.
The record date for any other purpose shall be as provided in Section 8.1
of these bylaws.
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2.13 PROXIES
Every person entitled to vote for directors, or on any other matter, shall
have the right to do so either in person or by one or more agents authorized by
a written proxy signed by the person and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy
(whether by manual signature, typewriting, telegraphic transmission,
telefacsimile or otherwise) by the stockholder or the stockholder's
attorney-in-fact. The revocability of a proxy that states on its face that it
is irrevocable shall be governed by the provisions of Section 212(e) of the
General Corporation Law of Delaware.
2.14 ORGANIZATION
The president, or in the absence of the president, the chairman of the
board, shall call the meeting of the stockholders to order, and shall act as
chairman of the meeting. In the absence of the president, the chairman of the
board, and all of the vice presidents, the stockholders shall appoint a
chairman for such meeting. The chairman of any meeting of stockholders shall
determine the order of business and the procedures at the meeting, including
such matters as the regulation of the manner of voting and the conduct of
business. The secretary of the corporation shall act as secretary of all
meetings of the stockholders, but in the absence of the secretary at any
meeting of the stockholders, the chairman of the meeting may appoint any person
to act as secretary of the meeting.
2.15 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be 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 of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
2.16 INSPECTORS OF ELECTION
Before any meeting of stockholders, the board of directors may appoint an
inspector or inspectors of election to act at the meeting or its adjournment.
If no inspector of election is so appointed, then the chairman of the meeting
may, and on the request of any stockholder or a stockholder's proxy shall,
appoint an inspector or inspectors of election to act at the meeting. The
number of inspectors shall be either one (1) or three (3). If inspectors are
appointed at a meeting pursuant to the request of one (1) or more stockholders
or proxies, then the holders of a majority of shares or their proxies present
at the meeting shall determine whether one (1) or three (3) inspectors are to
be appointed. If any person appointed as inspector fails to appear or fails or
refuses to act, then the chairman of the meeting may, upon the request of any
stockholder or a stockholder's proxy shall, appoint a person to fill that
vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting power
of each, the number of shares represented at the meeting, the existence of a
quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots or consents;
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(c) hear and determine all challenges and questions in any way
arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or
vote with fairness to all stockholders.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware and to
any limitations in the certificate of incorporation or these bylaws relating to
action required to be approved by the stockholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
3.2 NUMBER OF DIRECTORS
The board of directors shall consist of seven (7) members. The number of
directors may be changed by an amendment to this bylaw, duly adopted by the
board of directors or by the stockholders, or by a duly adopted amendment to the
certificate of incorporation. No reduction of the authorized number of directors
shall have the effect of removing any director before that director's term of
office expires. If for any cause, the directors shall not have been elected at
an annual meeting, they may be elected as soon thereafter as convenient at a
special meeting of the stockholders called for that purpose in the manner
provided in these Bylaws.
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, directors shall be
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Each director, including a director elected or appointed to fill
a vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
3.4 RESIGNATION AND VACANCIES
Any director may resign effective on giving written notice to the chairman
of the board, the president, the secretary or the board of directors, unless the
notice specifies a later time for that resignation to become effective. If the
resignation of a director is effective at a future time, the board of directors
may elect a successor to take office when the resignation becomes effective.
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Vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director; however, a vacancy created by the removal of a director by the vote of
the stockholders or by court order may be filled only by the affirmative vote of
a majority of the shares represented and voting at a duly held meeting at which
a quorum is present (which shares voting affirmatively also constitute a
majority of the required quorum). Each director so elected shall hold office
until the next annual meeting of the stockholders and until a successor has been
elected and qualified.
Unless otherwise provided in the certificate of incorporation or these
bylaws:
(i) Vacancies and newly created directorships resulting from
any increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the provisions of
the certificate of incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the certificate of incorporation or these bylaws, or may apply
to the Court of Chancery for a decree summarily ordering an election as provided
in Section 211 of the General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten (10) percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as aforesaid,
which election shall be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
3.5 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of
incorporation or by these bylaws, any director or the entire board of directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors; provided, however,
that, if and so long as stockholders of the corporation are entitled to
cumulative voting, if less than the entire board is to be removed, no director
may be removed without cause if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the entire
board of directors.
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
Regular meetings of the board of directors may be held at any place
within or outside the State of Delaware that has been designated from time to
time by resolution of the board. In the absence of such a designation, regular
meetings shall be held at the principal executive office of the corporation.
Special meetings of the board may be held at any place within or outside the
State of Delaware that has been designated in the notice of the meeting or, if
not stated in the notice or if there is no notice, at the principal executive
office of the corporation.
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STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 11:00 AM 05/03/2000
001224973 -- 2493974
CERTIFICATE OF AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
HARMONIC INC.
The undersigned, Anthony J. Ley, does hereby certify that:
1. He is the President of Harmonic Inc., a Delaware corporation (the
"Corporation");
2. The Restated Certificate of Incorporation of the Corporation is
hereby amended by striking out the first paragraph of Article IV
thereof and substituting in lieu of said paragraph the following new
paragraph:
"The Corporation is authorized to issue two classes of stock to be
designated, respectively, Preferred Stock, par value $0.001 per share
("Preferred Stock"), and Common Stock, par value $0.001 per share ("Common
Stock"). The total number of shares of Preferred Stock that the Corporation
shall have authority to issue is 5,000,000. The total number of shares of Common
Stock that the Corporation shall have authority to issue is 150,000,000."
3. The amendment of the Certificate of Incorporation herein certified has
been duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment of the Restated Certificate of Incorporation to be signed by its
President, on this 3rd day of May, 2000.
HARMONIC INC.
By: /s/ ANTHONY J. LEY
------------------------------------
ANTHONY J. LEY
President and Chief Executive Officer
RESTATED CERTIFICATE OF INCORPORATION
OF
HARMONIC LIGHTWAVES, INC.
The following Restated Certificate of Incorporation of Harmonic
Lightwaves, Inc. (the "Corporation") (i) amends and restates the provisions of
the Certificate of Incorporation of Harmonic Lightwaves, Inc. originally filed
with the Secretary of State of the State of Delaware on March 29, 1995, and
(ii) supersedes the original Certificate of Incorporation and all prior
amendments and restatements thereto (if any) in their entirety.
ARTICLE I
The name of this corporation is Harmonic Lightwaves, Inc. (the
"Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801, County of New Castle. The name of its registered agent at such address
is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
The Corporation is authorized to issue two classes of stock to be
designated, respectively, Preferred Stock, par value $0.001 per share
("Preferred Stock"), and Common Stock, par value $0.001 per share ("Common
Stock"). The total number of shares of Preferred Stock that the Corporation
shall have authority to issue is 5,000,000. The total number of shares of
Common Stock that the Corporation shall have authority to issue is 50,000,000.
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized, subject to limitations prescribed
by law and the provisions of this Article IV, to fix by resolution or
resolutions the designations, powers, preferences and rights of the shares of
each such series and the qualifications, limitations or restrictions thereof.
The authority of the Board with respect to each series shall include, but
not be limited to, determination of the following:
A. The number of shares constituting that series and the distinctive
designation of that series.
B. The dividend rate on the shares of that series, whether dividends
shall be cumulative, and, if so, from which date or dates, and the relative
rights of priority, if any, of payment of dividends on shares of that series.
C. Whether that series shall have the voting rights in addition to
the voting rights provided by law, and, if so, the terms of such voting rights.
D. Whether that series shall have conversion privileges, and, if so,
the terms and conditions of such privileges, including provision for adjustment
of the conversion rate in such events as the Board of Directors shall determine.
E. Whether or not the shares of that series shall be redeemable,
and, if so, the terms and conditions of such redemption, including the date or
dates upon or after which they shall be redeemable, and the amount per share
payable in case of redemption, which amount may vary under different conditions
and at different redemption rates.
F. Whether that series shall have a sinking fund for the redemption
or purchase of shares of that series, and, if so, the terms and the amount of
such sinking funds.
G. The rights of the shares of that series in the event of voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, and
the relative rights of priority, if any, of payment of shares of that series.
H. Any other relative rights, preferences and limitations of that
series.
The Board of Directors is further authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but not below the
number of shares of any such series then outstanding) the number of shares of
any series, the number of which was fixed by it, subsequent to the issue of
shares of such series then outstanding, subject to the powers, preferences and
rights, and the qualifications, limitations and restrictions thereof stated in
the resolution of the Board of Directors originally fixing the number of shares
of such series. If the number of shares of any series is so decreased, then the
shares constituting such decrease shall resume the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such
series.
ARTICLE V
The Corporation is to have perpetual existence.
ARTICLE VI
A. The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
designated in the Bylaws of the Corporation.
B. In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors is expressly
authorized to adopt, alter, amend or repeal the Bylaws of the Corporation.
C. The directors of the Corporation need not be elected by written
ballot unless a stockholder demands election by written ballot at a meeting of
stockholders and before voting begins or unless the Bylaws of the Corporation so
provide.
-2-
D. At the election of directors of the Corporation, each holder of
Common Stock shall be entitled to one vote for each share held. No stockholder
will be permitted to cumulate votes at any election of directors.
ARTICLE VII
A. To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or as may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director.
B. The Corporation may indemnify to the fullest extent permitted by law
any person made or threatened to be made a party to an action or proceeding,
whether criminal, civil, administrative or investigative, by reason of the fact
that he, his testator or intestate is or was a director, officer or employee of
the Corporation or any predecessor of the Corporation or serves or served at
any other enterprise as a director, officer or employee at the request of the
Corporation or any predecessor to the Corporation.
C. Neither any amendment nor repeal of this Article VII, nor the
adoption of any provision of the Corporation's Certificate of Incorporation
inconsistent with this Article VII, shall eliminate or reduce the effect of
this Article VII, in respect of any matter occurring, or any action, suit,
claim or proceeding accruing or arising or that, but for this Article VII,
would accrue or arise, prior to such amendment, repeal, or adoption of an
inconsistent provision.
ARTICLE VIII
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the laws of the State of Delaware)
outside of the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the Bylaws of the Corporation.
ARTICLE IX
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by the laws of the State of Delaware, and all rights
conferred herein are granted subject to this reservation.
The Restated Certificate of Incorporation has been duly adopted by the
stockholders of the Corporation in accordance with the provisions of Sections
242 and 245 of the General Corporation Law of the State of Delaware, as amended.
IN WITNESS WHEREOF, the undersigned have executed this certificate on May
30, 1995.
/s/ ANTHONY J. LEY
----------------------------------------
Anthony J. Ley, President
/s/ JEFFREY D. SAPER
----------------------------------------
Jeffrey D. Saper, Secretary
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The undersigned certify under penalty of perjury that they have read the
foregoing Restated Certificate of Incorporation and know the contents thereof,
and that the statements therein are true.
Executed at Palo Alto, California on May 30, 1995.
/s/ ANTHONY J. LEY
----------------------------------------
Anthony J. Ley, President
/s/ JEFFREY D. SAPER
----------------------------------------
Jeffrey D. Saper, Secretary
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