EXHIBIT 3.5
AMENDED AND RESTATED
BYLAWS
OF
NETGEAR, INC.
TABLE OF CONTENTS
PAGE
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....................................................2
2.4 NOTICE OF STOCKHOLDERS' MEETINGS; EXCEPTION TO REQUIREMENTS OF
NOTICE.............................................................2
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.......................3
2.6 QUORUM.............................................................3
2.7 ADJOURNED MEETING; NOTICE..........................................3
2.8 VOTING.............................................................4
2.9 WAIVER OF NOTICE...................................................4
2.10 NO STOCKHOLDER ACTION BY WRITTEN CONSENT...........................4
2.11 RECORD DATE FOR STOCKHOLDER NOTICE.................................5
2.12 PROXIES............................................................5
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE; STOCK LEDGER................5
2.14 NOMINATIONS AND PROPOSALS BY STOCKHOLDERS AT ANNUAL MEETING........6
2.15 ORGANIZATION.......................................................8
2.16 NOTICE BY ELECTRONIC TRANSMISSION..................................8
ARTICLE III DIRECTORS..........................................................9
3.1 POWERS.............................................................9
3.2 NUMBER OF DIRECTORS................................................9
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS............9
3.4 RESIGNATION AND VACANCIES.........................................10
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE..........................10
3.6 FIRST MEETINGS....................................................11
3.7 REGULAR MEETINGS..................................................11
3.8 SPECIAL MEETINGS; NOTICE..........................................11
3.9 QUORUM............................................................12
3.10 WAIVER OF NOTICE..................................................12
3.11 ADJOURNED MEETING; NOTICE.........................................12
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.................12
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TABLE OF CONTENTS
(CONTINUED)
PAGE
3.13 FEES AND COMPENSATION OF DIRECTORS................................12
3.14 REMOVAL OF DIRECTORS..............................................13
ARTICLE IV COMMITTEES.........................................................13
4.1 COMMITTEES OF DIRECTORS...........................................13
4.2 COMMITTEE MINUTES.................................................13
4.3 MEETINGS AND ACTION OF COMMITTEES.................................13
ARTICLE V OFFICERS............................................................14
5.1 OFFICERS..........................................................14
5.2 ELECTION OF OFFICERS..............................................14
5.3 SUBORDINATE OFFICERS..............................................14
5.4 REMOVAL AND RESIGNATION OF OFFICERS...............................15
5.5 VACANCIES IN OFFICES..............................................15
5.6 CHAIRMAN OF THE BOARD.............................................15
5.7 CHIEF EXECUTIVE OFFICER...........................................15
5.8 PRESIDENT.........................................................15
5.9 VICE PRESIDENT....................................................16
5.10 SECRETARY.........................................................16
5.11 CHIEF FINANCIAL OFFICER...........................................16
5.12 ASSISTANT SECRETARY...............................................17
5.13 ASSISTANT TREASURER...............................................17
5.14 AUTHORITY AND DUTIES OF OFFICERS..................................17
ARTICLE VI INDEMNITY..........................................................17
6.1 RIGHT TO INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS
OTHER THAN THOSE BY OR IN THE RIGHTS OF THE CORPORATION...........17
6.2 RIGHT TO INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS BY
OR IN THE RIGHT OF THE CORPORATION................................18
6.3 AUTHORIZATION OF INDEMNIFICATION..................................18
6.4 GOOD FAITH DEFINED................................................19
6.5 INDEMNIFICATION BY A COURT........................................19
6.6 EXPENSES PAYABLE IN ADVANCE.......................................20
6.7 NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.....20
6.8 INSURANCE.........................................................20
6.9 CERTAIN DEFINITIONS...............................................20
6.10 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES...........21
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TABLE OF CONTENTS
(CONTINUED)
PAGE
6.11 LIMITATION ON INDEMNIFICATION.....................................21
6.12 INDEMNIFICATION OF EMPLOYEES AND AGENTS...........................21
ARTICLE VII RECORDS AND REPORTS...............................................21
7.1 MAINTENANCE AND INSPECTION OF RECORDS.............................21
7.2 INSPECTION BY DIRECTORS...........................................22
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS....................22
ARTICLE VIII GENERAL MATTERS..................................................22
8.1 CHECKS............................................................22
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS..................23
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES............................23
8.4 SPECIAL DESIGNATION ON CERTIFICATES...............................23
8.5 LOST CERTIFICATES.................................................24
8.6 CONSTRUCTION; DEFINITIONS.........................................24
8.7 DIVIDENDS.........................................................24
8.8 FISCAL YEAR.......................................................24
8.9 SEAL..............................................................25
8.10 TRANSFER OF STOCK.................................................25
8.11 REGISTERED STOCKHOLDERS...........................................25
ARTICLE IX AMENDMENTS.........................................................25
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AMENDED AND RESTATED
BYLAWS
OF
NETGEAR, INC.
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The address of the Corporation's registered office in the State of
Delaware is 15 East North Street, in the City of Dover, County of Kent. The name
of the registered agent at such address is Incorporating Services, Ltd.
1.2 OTHER OFFICES
The Board of Directors of the corporation (the "Board") may at any time
establish other offices at any place or places where the corporation is
qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place, within or outside the
State of Delaware, as designated by the Board. In the absence of any such
designation, stockholders' meetings shall be held at the registered 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. At the annual meeting, directors shall be
elected and any other proper business may be transacted.
2.3 SPECIAL MEETING
Subject to the rights of the holders of any series of Preferred Stock then
outstanding, special meetings of the stockholders may be called at any time only
by the Board acting pursuant to a resolution duly adopted by a majority of the
Board, the Chairman of the Board, the Chief Executive Officer or the President.
Only such business shall be considered at a special meeting of stockholders as
shall have been stated in the notice for such meeting.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS; EXCEPTION TO REQUIREMENTS OF NOTICE
All notices of meetings with stockholders shall be in writing and 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) calendar days before the date of the
meeting to each stockholder entitled to vote at such meeting. The notice shall
specify the place, date and hour of the meeting, the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting (as authorized by the Board in its
sole discretion pursuant to Section 211(a)(2) of the General Corporation Law of
Delaware), and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Any previously scheduled meeting of stockholders
may be postponed, and, unless the Certificate of Incorporation of the
corporation, as the same may be amended and/or restated from time to time (as so
amended and restated, the "Certificate") provides otherwise, any special meeting
of the stockholders may be cancelled by resolution duly adopted by a majority of
the Board members then in office upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
Whenever notice is required to be given, under the General Corporation Law
of Delaware, the Certificate or these Bylaws, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the corporation is
such as to require the filing of a certificate with the Secretary of State of
Delaware, the certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to receive notice except
such persons with whom communication is unlawful.
Whenever notice is required to be given, under any provision of the
General Corporation Law of Delaware, the Certificate or these Bylaws, to any
stockholder, and such stockholder has received (a) notice of two (2) consecutive
annual meetings, or (b) at least two (2) payments (if sent by first-class mail)
of dividends or interest on securities during a twelve (12) month period, having
been mailed such notice addressed to such person at such person's address as
shown on the records of the corporation and have been returned undeliverable,
the giving of such notice to such person shall not be required. Any actions or
meeting which shall be taken or held without notice to such person shall have
the same force and effect as if such notice had been duly given. If any such
person
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shall deliver to the corporation a written notice setting forth such person's
then current address, the requirement that notice be given to such person shall
be reinstated. In the event that the action taken by the corporation is such as
to require the filing of a certificate with the Secretary of State of Delaware,
the certificate need not state that notice was not given to persons to whom
notice was not required to be given pursuant to Section 230(b) of the General
Corporation Law of Delaware.
The exception in subsection (a) of the above paragraph to the requirement
that notice be given shall not be applicable to any notice returned as
undeliverable if the notice was given by electronic transmission.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his, her or its address as it appears on the records of the
corporation and otherwise is given when delivered. An affidavit of the Secretary
or an Assistant Secretary, the transfer agent or other agent of the corporation
that the notice has been given shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
2.6 QUORUM
The holders of a majority 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 the Certificate. If, however, such
quorum is not present or represented at any meeting of the stockholders, then a
majority of the stockholders entitled to vote thereat, 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 is present
or represented. At such adjourned meeting at which a quorum is present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed. The stockholders present at a duly called
meeting at which quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these Bylaws
otherwise require, notice need not be given of the adjourned meeting if the time
and place thereof, and the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at
such adjourned meeting (as authorized by the Board in its sole discretion
pursuant to Section 211(a)(2) of the General Corporation Law of Delaware), 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
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record entitled to vote at the meeting. The Chairman of the meeting shall have
the power to adjourn any meeting of stockholders for any reason and the
stockholders shall have the power to adjourn any meeting of stockholders in
accordance with Section 2.6 of these Bylaws.
2.8 VOTING
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.11 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
of stock and to voting trusts and other voting agreements).
Except as otherwise provided in the provisions of Section 213 of the
General Corporation Law of Delaware (relating to the fixing of a date for
determination of stockholders of record), or as may be otherwise provided in the
Certificate, each stockholder shall be entitled to one (1) vote for each share
of capital stock held by such stockholder.
In all matters, other than the election of directors and except as
otherwise required by law, the affirmative vote of the majority of shares
present or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders. Directors shall be elected
by a plurality of the votes of the shares present in person or represented by
proxy at the meeting and entitled to vote on the election of directors.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the General
Corporation Law of Delaware, the Certificate or these Bylaws, a written waiver
thereof, signed by the person entitled to notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders need be specified
in any written waiver of notice, or any waiver by electronic transmission,
unless so required by the Certificate or these Bylaws.
2.10 NO STOCKHOLDER ACTION BY WRITTEN CONSENT
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 such
holders and may not be effected by any consent in writing by such holders.
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2.11 RECORD DATE FOR STOCKHOLDER NOTICE
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
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which such date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board and which such date shall not be more than sixty (60) nor less than
ten (10) calendar days before the date of such meeting, nor more than sixty (60)
days prior to any other action.
If the Board 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 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.
(b) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
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;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
2.12 PROXIES
Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him, her or it by a written
proxy, signed by the stockholder 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
stockholder may authorize another person or persons to act for him, her or it as
proxy in the manner(s) provided under Section 212(c) of the General Corporate
Law of Delaware or as otherwise provided under Delaware law. 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.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE; STOCK LEDGER
The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) calendar 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.
Nothing contained in this Section shall require the corporation to include
electronic mail addresses or other electronic contact information on such list.
Such list shall be open to the examination of any stockholder, for
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any purpose germane to the meeting: (a) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of the meeting, or (b) for a period of at least ten
(10) calendar days prior to the meeting during ordinary business hours at the
principal place of business of the corporation.
In the event that the corporation determines to make the list available on
an electronic network, the corporation may take reasonable steps to ensure that
such information is available only to the stockholders of the corporation. The
list shall be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
2.14 NOMINATIONS AND PROPOSALS BY STOCKHOLDERS AT ANNUAL MEETING
(a) Only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be: (A) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board, (B) otherwise
properly brought before the meeting by or at the direction of the Board, or (C)
otherwise properly brought before the meeting by a stockholder (i) who is a
stockholder of record on the date of the giving of notice provided for in this
Section 2.14(a) and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 2.14(a). 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 120 calendar
days in advance of the date that is the one year anniversary of 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 not later than the close of
business on the tenth (10th) day following the day notice of the date of the
meeting was mailed or such public disclosure was made, whichever occurs first. 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 such stockholder's
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 stockholder's 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
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with the procedures set forth in this paragraph (a). 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 paragraph (a), 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.
(b) Only persons who are nominated in accordance with the procedures
set forth in this paragraph (b) shall be eligible for election as directors,
except as otherwise provided in the Certificate of Incorporation with respect to
the right of holders of preferred stock of the corporation. Nominations of
persons for election to the Board of the corporation may be made at a meeting of
stockholders by or at the direction of the Board 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 (b). Such
nominations, other than those made by or at the direction of the Board, shall be
made pursuant to timely notice in writing to the Secretary of the corporation in
accordance with the provisions of paragraph (a) of this Section 2.14. 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 of 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 (a) of this Section 2.14. At the request of the
Board, 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 (b). The
chairman of the meeting shall, if the facts warrants, 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.
(c) Notwithstanding the foregoing provisions of this Section 2.14, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 2.14. Nothing in this Section 2.14 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
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2.15 ORGANIZATION
Meetings of stockholders shall be presided over by (a) the Chairman of the
Board or, in the absence thereof, (b) such person as the Chairman of the Board
shall appoint or, in the absence thereof or in the event that the Chairman of
the Board shall fail to make such appointment, (c) such person as the Chairman
of the executive committee of the corporation shall appoint or, in the absence
thereof or in the event that the Chairman of the executive committee of the
corporation shall fail to make such appointment, any officer of the corporation
elected by the Board. In the absence of the Secretary of the corporation, the
secretary of the meeting shall be such person as the Chairman of the meeting
appoints.
The Board shall, in advance of any meeting of stockholders, appoint one
(1) or more inspector(s), who may include individual(s) who serve the
corporation in other capacities, including without limitation as officers,
employees or agents, to act at the meeting of stockholders and make a written
report thereof. The Board may designate one (1) or more persons as alternate
inspector(s) to replace any inspector, who fails to act. If no inspector or
alternate has been appointed or is able to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one (1) or more inspector(s) to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath to faithfully execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspector(s)
or alternate(s) shall have the duties prescribed pursuant to Section 231 of the
General Corporate Laws of Delaware or other applicable law.
The Board 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, if any, the Chairman of the
meeting shall have the right and authority to prescribe such rules, regulations
and procedures and to do all 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 of business of the meeting,
rules or regulations to maintain order, restrictions on entry to the meeting
after the time fixed for commencement thereof and the fixing of the date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting (and shall announce such at the meeting).
2.16 NOTICE BY ELECTRONIC TRANSMISSION
Without limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders given by the corporation
under any provision of the General Corporation Law of Delaware, the Certificate
or these Bylaws shall be effective if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given. Any such consent
shall be revocable by the stockholder by written notice to the corporation. Any
such consent shall be deemed revoked if (a) the corporation is unable to deliver
by electronic transmission two (2) consecutive notices given by the corporation
in accordance with such consent, and (b) such inability becomes known to the
Secretary or an Assistant Secretary of the corporation, the transfer agent or
other person responsible for the giving of notice; provided, however, the
inadvertent failure to treat such inability as a revocation shall not invalidate
any meeting or other action.
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Notice given pursuant to the above paragraph shall be deemed given (a) if
by facsimile telecommunication, when directed to a number at which the
stockholder has consented to receive notice, (b) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to
receive notice, (c) if by a posting on an electronic network together with a
separate notice to the stockholder of such specific posting, upon the later of
(i) such posting, and (ii) the giving of such separate notice, and (d) if by any
other form of electronic transmission, when directed to the stockholder. An
affidavit of the Secretary or Assistant Secretary, the transfer agent or other
agent of the corporation that the notice has been given by a form of electronic
transmission shall in the absence of fraud, be prima facie evidence of the facts
stated therein.
For purposes of these Bylaws, "electronic transmission" means any form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process. This Section 2.16 shall not apply to Section 164
(failure to pay for stock; remedies), Section 296 (adjudication of claims;
appeal), Section 311 (revocation of voluntary dissolution), Section 312
(renewal, revival, extension and restoration of certificate of incorporation) or
Section 324 (attachment of shares of stock) of the General Corporation Law of
Delaware.
ARTICLE III
DIRECTORS
3.1 POWERS
The business and affairs of the corporation shall be managed by or under
the direction of the Board. In addition to the power and authorities these
Bylaws expressly confer upon them, the Board may exercise all such powers of the
corporation and do all such lawful acts and things as are not required by
statute, the Certificate or these Bylaws to be exercised or done by the
stockholders.
3.2 NUMBER OF DIRECTORS
Subject to the rights of the holders of any Preferred Stock of the
corporation to elect additional directors under specified circumstances, the
authorized number of directors of the corporation shall be fixed from time to
time exclusively by the Board pursuant to a resolution duly adopted by a
majority of the Board members then in office.
No reduction of the authorized number of directors shall have the effect
of removing any director before such director's term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in the Certificate or Section 3.4 of these Bylaws,
each director, including a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until such director's
successor is elected and qualified or until such director's earlier death,
resignation or removal.
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Directors need not be stockholders unless so required by the Certificate
or these Bylaws, wherein other qualifications for directors may be prescribed.
Elections of directors at all meetings of the stockholders at which
directors are to be elected shall be by ballot and, subject to the rights of the
holders of any Preferred Stock of the corporation to elect additional directors
under specified circumstances, a plurality of the votes cast thereat shall elect
directors. The ballot shall state the name of the stockholder or proxy voting or
such other information as may be required under the procedure established by the
Chairman of the meeting. If authorized by the Board, such requirement of a
ballot shall be satisfied by a ballot submitted by electronic transmission
provided that any such electronic transmission must either set forth or be
submitted with information from which it can be determined that the electronic
submission was authorized.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice or by electronic
transmission to the corporation.
Subject to the rights of the holders of any series of Preferred Stock of
the corporation then outstanding and unless the Board otherwise determines,
newly created directorships resulting from any increase in the authorized number
of directors, or any vacancies on the Board resulting from the death,
resignation, retirement, disqualification, removal from office or other cause
shall, unless otherwise provided by law or resolution of the Board, be filled
only by a majority vote of the directors then in office, whether or not less
than a quorum, and directors so chosen shall hold office until such director's
successor is elected and qualified.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The Board may hold meetings, both regular and special, either within or
outside the State of Delaware.
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Unless otherwise restricted by the Certificate or these Bylaws, members of
the Board, or any committee designated by the Board, may participate in a
meeting of the Board, or any committee, by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
3.6 FIRST MEETINGS
The first meeting of each newly elected Board shall be held immediately
after, and at the same location as, the annual meeting of stockholders, unless
the Board shall fix another time and place and give notice thereof (or obtain
waivers of notice thereof) in the manner required herein for special meetings of
directors, and no notice of such meeting shall be necessary to the newly elected
directors in order legally to constitute the meeting, except as provided in this
Section 3.6 and provided that a quorum shall be present.
3.7 REGULAR MEETINGS
Regular meetings of the Board may be held without notice at such time and
at such place as shall from time to time be determined by the Board.
3.8 SPECIAL MEETINGS; NOTICE
Special meetings of the Board for any purpose(s) may be called at any time
by the Chairman of the Board, the Chief Executive Officer, the President or a
majority of the members of the Board then in office. The person(s) authorized to
call special meetings of the Board may fix the place and time of the meetings.
The Secretary shall give notice of any special meeting to each director
personally or by telephone, or sent by first-class mail, overnight mail, courier
service or telegram, postage or charges prepaid, addressed to each director at
that director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) calendar days before the time of the holding of the meeting. If the notice
is delivered by telegram, overnight mail or courier, it shall be deemed
adequately delivered when the telegram is delivered to the telegraph company or
the notice is delivered to the overnight mail or courier service company at
least forty-eight (48) hours before such meeting. If by facsimile transmission,
such notice shall be deemed adequately delivered when the notice is transmitted
at least twelve (12) hours before such meeting. If by telephone or hand delivery
the notice shall be given at least twelve (12) hours prior to the time set for
the meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the director
who the person giving the notice has reason to believe will promptly communicate
it to the director. The notice need not specify the purpose or the place of the
meeting, if the meeting is to be held at the principal executive office of the
corporation.
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3.9 QUORUM
At all meetings of the Board, a majority of the Whole Board (as defined
below) shall constitute a quorum for all purposes 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, except as may be otherwise specifically provided by statute or by
the Certificate. The directors present at a duly organized meeting may continue
to transact business until adjournment notwithstanding the withdrawal of enough
directors to leave less than quorum. The term "Whole Board" shall mean the total
number of authorized directors of the corporation whether or not there exist any
vacancies in previously authorized directorships.
3.10 WAIVER OF NOTICE
Whenever notice is required to be given under any provisions of the
General Corporation Law of Delaware of the Certificate or these Bylaws, a
written waiver thereof, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
directors, or members of a committee of directors, need be specified in any
written waiver of notice or any waiver by electronic transmission unless so
required by the Certificate or these Bylaws.
3.11 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the Board, then a majority of
the directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the Certificate or these Bylaws, any action
required or permitted to be taken at any meeting of the Board, or of 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 or by electronic
transmission and the writing(s) or electronic transmission(s) are filed with the
minutes of proceedings of the Board or committee. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic form
if the minutes are maintained in electronic form.
3.13 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the Certificate or these Bylaws, the Board
shall have the authority to fix the compensation of directors.
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3.14 REMOVAL OF DIRECTORS
Subject to the rights of the holders of any series of Preferred Stock of
the corporation then outstanding, unless otherwise restricted by statute, the
Certificate or these Bylaws, any director, or all of the directors, may be
removed from the Board, with or without cause, but only by the affirmative vote
of the holders of at least a majority of the voting power of all the then
outstanding shares of capital stock of the corporation then entitled to vote at
the election of directors, voting together as a single class.
For purposes of the foregoing paragraph, "cause" shall mean (i) continued
willful failure to perform the obligations of a director, (ii) gross negligence
by the director, (iii) engaging in transactions that defraud the corporation,
(iv) fraud or intentional misrepresentation, including falsifying use of funds
and intentional misstatements made in financial statements, books, records or
reports to stockholders or governmental agencies, (v) material violation of any
agreement between the director and the corporation, (vi) knowingly causing the
corporation to commit violations of applicable law (including by failure to
act), (vii) acts of moral turpitude or (viii) conviction of a felony.
No reduction of the authorized number of directors shall have the effect
of removing any director prior to the expiration of such director's term of
office.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The Board may from time to time, by resolution passed by a majority of the
Whole Board, designate one (1) or more committees of the Board, with such
lawfully delegable powers and duties as it thereby confers, with each committee
to consist of one (1) or more of the directors of the corporation. The Board may
designate one (1) or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member(s)
thereof present at any meeting and not disqualified from voting, whether or not
such member(s) constitute a quorum, may unanimously appoint another member of
the Board to act at the meeting in the place of any such absent or disqualified
member.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report the
same to the Board when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
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Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these Bylaws, Section
3.5 (place of meetings and meetings by telephone), Section 3.7 (regular
meetings), Section 3.8 (special meetings and notice), Section 3.9 (quorum),
Section 3.10 (waiver of notice), Section 3.11 (adjournment and notice of
adjournment), and Section 3.12 (action without a meeting), with such changes in
the context of those Bylaws as are necessary to substitute the committee and its
members for the Board and its members; provided, however, that the time of
regular and special meetings of committees may also be called by resolution of
the Board. The Board may adopt rules for the government of any committee not
inconsistent with the provisions of these Bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a President and a Secretary. The
corporation may also have, at the discretion of the Board, a Chairman of the
Board, a Vice Chairman of the Board, a Chief Executive Officer, a Chief
Financial Officer, a Treasurer, one or more Vice Presidents, Assistant Vice
Presidents, Assistant Secretaries, and Assistant Treasurers, and any such other
officers as may be appointed in accordance with the provisions of Section 5.3 of
these Bylaws. Any number of offices may be held by the same person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as may be appointed
in accordance with the provisions of Section 5.3 of these Bylaws, shall be
chosen by the Board, which shall consider such subject at its first meeting
after every annual meeting of stockholders, subject to the rights, if any, of an
officer under any contract of employment. Each officer shall hold office until
his or her successor is elected and qualified or until his or her earlier
resignation or removal. A failure to elect officers shall not dissolve or
otherwise affect the corporation.
5.3 SUBORDINATE OFFICERS
The Board may appoint, or empower the Chief Executive Officer or, in the
absence of a Chief Executive Officer, the President, to appoint, such other
officers as the business of the corporation may require, each of whom shall hold
office for such period, have such authority, and perform such duties as are
provided in these Bylaws or as the Board may from time to time determine.
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5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under contract of employment,
any officer may be removed, either with or without cause, by an affirmative vote
of the majority of the Board at any regular or special meeting of the Board.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice. Unless otherwise
specified in such notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation shall be filled by
the Board.
5.6 CHAIRMAN OF THE BOARD
The Chairman of the Board, if such an officer be elected, shall, if
present, preside at meetings of the Board and exercise and perform such other
powers and duties as may from time to time be assigned to him or her by the
Board or as may be prescribed by these Bylaws. If there is no Chief Executive
Officer or President, then the Chairman of the Board shall also be the Chief
Executive Officer of the corporation and as such shall also have the powers and
duties prescribed in Section 5.7 of these Bylaws.
5.7 CHIEF EXECUTIVE OFFICER
Subject to such supervisory powers, if any, as the Board may give to the
Chairman of the Board, the Chief Executive Officer, if any, shall, subject to
the control of the Board, have general supervision, direction, and control of
the business and affairs of the corporation and shall report directly to the
Board. All other officers, officials, employees and agents shall report directly
or indirectly to the Chief Executive Officer. The Chief Executive Officer shall
see that all orders and resolutions of the Board are carried into effect. The
Chief Executive Officer shall serve as chairperson of and preside at all
meetings of the stockholders. In the absence of a Chairman of the Board, the
Chief Executive Officer shall preside at all meetings of the Board.
5.8 PRESIDENT
In the absence or disability of the Chief Executive Officer, the President
shall perform all the duties of the Chief Executive Officer. When acting as the
Chief Executive Officer, the President shall have all the powers of, and be
subject to all the restrictions upon, the Chief Executive Officer. The President
shall have such other powers and perform such other duties as from time to time
may be prescribed for him or her by the Board, these Bylaws, the Chief Executive
Officer or the Chairman of the Board.
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5.9 VICE PRESIDENT
In the absence or disability of the President, the Vice President(s), if
any, in order of their rank as fixed by the Board or, if not ranked, a Vice
President designated by the Board, shall perform all the duties of the President
and, when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the President. The Vice President(s) shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board, these Bylaws, the Chairman of the Board, the
Chief Executive Officer or, in the absence of a Chief Executive Officer, the
President.
5.10 SECRETARY
The Secretary shall keep or cause to be kept, at the principal executive
office of the corporation or such other place as the Board may direct, a book of
minutes of all meetings and actions of directors, committees of directors, and
stockholders. The minutes shall show the time and place of each meeting, whether
regular or special (and, if special, how authorized and the notice given), the
names of those present at directors' meetings or committee meetings, the number
of shares present or represented at stockholders' meetings, and the proceedings
thereof.
The Secretary shall keep, or cause to be kept, at the principal executive
office of the corporation or at the office of the corporation's transfer agent
or registrar, as determined by resolution of the Board, a share register, or a
duplicate share register, showing the names of all stockholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates evidencing such shares, and the number and date of cancellation of
every certificate surrendered for cancellation. Such share register shall be the
"stock ledger" for purposes of Section 2.13 of these Bylaws.
The Secretary shall give, or cause to be given, notice of all meetings of
the stockholders and of the Board, or committee of the Board, required to be
given by law or by these Bylaws. He or she shall keep the seal of the
corporation, if one be adopted, in safe custody and shall have such other powers
and perform such other duties as may be prescribed by the Board or by these
Bylaws.
5.11 CHIEF FINANCIAL OFFICER
The Chief Financial Officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital and
retained earnings.
The Chief Financial Officer shall deposit all money and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board or Chief Executive Officer. The Chief Financial Officer
shall disburse the funds of the corporation as may be ordered by the Board,
shall render to the Board and Chief Executive Officer, or in the absence of a
Chief Executive Officer the President, whenever they request, an account of all
of his or her
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transactions as Chief Financial Officer and of the financial condition of the
corporation, and shall have such other powers and perform such other duties as
may be prescribed by the Board or these Bylaws. In lieu of any contrary
resolution duly adopted by the Board, the Chief Financial Officer shall be the
Treasurer of the corporation.
5.12 ASSISTANT SECRETARY
The Assistant Secretary(ies), if any, in the order determined by the Board
(or if there be no such determination, then in the order of their election)
shall, in the absence of the Secretary or in the event of his or her inability
or refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board may
from time to time prescribe.
5.13 ASSISTANT TREASURER
The Assistant Treasurer(s), if any, in the order determined by the Board
(or if there be no such determination, then in the order of their election),
shall, in the absence of the Chief Financial Officer or in the event of his or
her inability or refusal to act, perform the duties and exercise the powers of
the Chief Financial Officer and shall perform such other duties and have such
other powers as the Board may from time to time prescribe.
5.14 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, all officers of the
corporation shall respectively have such authority and perform such duties in
the management of the business of the corporation as may be designated from time
to time by the Board.
ARTICLE VI
INDEMNITY
6.1 RIGHT TO INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN
THOSE BY OR IN THE RIGHTS OF THE CORPORATION
Subject to Section 6.3 of this Article VI, the corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a
director or officer of the corporation, or is or was a director or officer of
the corporation serving at the request of the corporation as a director or
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and,
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with respect to any criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
6.2 RIGHT TO INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE
RIGHT OF THE CORPORATION
Subject to Section 6.3 of this Article VI, the corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the corporation, or is or was a
director or officer of the corporation serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
6.3 AUTHORIZATION OF INDEMNIFICATION
Any indemnification under this Article VI (unless ordered by a court)
shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Section 6.1 or Section 6.2 of this Article VI, as the case may be. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (a) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (b) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (c) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion or (d) by the stockholders (but only if a majority
of the directors who are not parties to such action, suit or proceeding, if they
constitute a quorum of the board of directors, presents the issue of entitlement
to indemnification to the stockholders for their determination). Any person or
persons having the authority to act on the matter on behalf of the corporation
shall make such determination, with respect to former directors and officers. To
the extent, however, that a present or former director or
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officer of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith, without the necessity of authorization in the
specific case.
6.4 GOOD FAITH DEFINED
For purposes of any determination under Section 6.3 of this Article VI, a
person shall be deemed to have acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, or, with respect to any criminal action or proceeding, to have had
no reasonable cause to believe such person's conduct was unlawful, if such
person's action is based on the records or books of account of the corporation
or another enterprise, or on information supplied to such person by the officers
of the corporation or another enterprise in the course of their duties, or on
the advice of legal counsel for the corporation or another enterprise or on
information or records given or reports made to the corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the corporation or another
enterprise. The term "another enterprise" as used in this Section 6.4 shall mean
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request
of the corporation as a director, officer, employee or agent. The provisions of
this Section 6.4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 6.1 or 6.2 of this Article VI, as the
case may be.
6.5 INDEMNIFICATION BY A COURT
Notwithstanding any contrary determination in the specific case under
Section 6.3 of this Article VI, and not withstanding the absence of any
determination thereunder, any director or officer may apply to the Court of
Chancery in the State of Delaware (but in no event later than forty-five (45)
days after written receipt of the written request by said director or officer)
for indemnification to the extent otherwise permissible under Sections 6.1 and
6.2 of this Article VI. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standards
of conduct set forth in Section 6.1 or 6.2 of this Article VI, as the case may
be. Neither a contrary determination in the specific case under Section 6.3 of
this Article VI nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 6.5 shall be
given to the corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification
shall also be entitled to be paid the expense of prosecuting such application.
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6.6 EXPENSES PAYABLE IN ADVANCE
Expenses incurred by a director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
this Article VI.
6.7 NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The indemnification and advancement of expenses provided by or granted
pursuant to this Article VI shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under the Certificate, any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office, it being the policy of the corporation that indemnification of the
persons specified in Sections 6.1 and 6.2 of this Article VI shall be made to
the fullest extent permitted by law. The provisions of this Article VI shall not
be deemed to preclude the indemnification of any person who is not specified in
Section 6.1 or 6.2 of this Article VI but whom the corporation has the power or
obligation to indemnify under the provisions of the General Corporation Law of
the State of Delaware, or otherwise.
6.8 INSURANCE
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the corporation, or is or was a
director or officer of the corporation serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
corporation would have the power or the obligation to indemnify such person
against such liability under the provisions of this Article VI.
6.9 CERTAIN DEFINITIONS
For purposes of this Article VI, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors or officers, so that any person who is or
was a director or officer of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of this
Article VI with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VI, references to
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"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation " shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner such
person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article VI.
6.10 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VI shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
6.11 LIMITATION ON INDEMNIFICATION
Notwithstanding anything contained in this Article VI to the contrary,
except for proceedings to enforce rights to indemnification (which shall be
governed by Section 6.5 hereof), the corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the board of directors of the corporation.
6.12 INDEMNIFICATION OF EMPLOYEES AND AGENTS
The corporation may, to the extent authorized from time to time by the
board of directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the corporation similar to those conferred
in this Article VI to directors and officers of the corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at such
place or places as designated by the Board, keep a record of its stockholders
listing their names and addresses and the number and class of shares held by
each stockholder, a copy of these Bylaws, as may be amended to date, minute
books, accounting books and other records.
Any such records maintained by the corporation may be kept on, or by means
of, or be in the form of, any information storage device or method, provided
that the records so kept can be converted into clearly legible paper form within
a reasonable time. The corporation shall so convert
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any records so kept upon the request of any person entitled to inspect such
records pursuant to the provisions of the General Corporation Law of Delaware.
When records are kept in such manner, a clearly legible paper form produced from
or by means of the information storage device or method shall be admissible in
evidence, and accepted for all other purposes, to the same extent as an original
paper form accurately portrays the record.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its principal place of
business.
7.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his or her position as a director. The Court of
Chancery is hereby vested with the exclusive jurisdiction to determine whether a
director is entitled to the inspection sought. The Court may summarily order the
corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The
Court may, in its discretion, prescribe any limitations or conditions with
reference to the inspection, or award such other and further relief as the Court
may deem just and proper.
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
Unless otherwise directed by the Board, the Chief Executive Officer, the
President, or any other person authorized by the President, is authorized to
vote, represent, and exercise on behalf of the corporation all rights incident
to any and all shares of any other corporation(s) standing in the name of the
corporation. The authority granted herein may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of
attorney duly executed by such person having the authority.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS
From time to time, the Board shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for payment of
money, notes or other evidences of
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indebtedness that are issued in the name of or payable to the corporation, and
only the persons so authorized shall sign or endorse those instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The Board, except as otherwise provided in these Bylaws, may authorize any
officer or officers, or agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the corporation. Such authority
may be general or confined to specific instances. Unless so authorized or
ratified by the Board or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it liable for
any purpose or for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation shall be represented by certificates, provided
that the Board may provide by resolution that some or all of any or all classes
or series of its stock shall be uncertificated shares. Any such resolution shall
not apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Notwithstanding the adoption of such a
resolution by the Board, every holder of stock represented by certificates and
upon request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of the corporation by the Chairman of the
Board or Chief Executive Officer, or the President or Vice-President, and by the
Chief Financial Officer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the corporation representing the number of shares
registered in certificate form. Any or all of the signatures 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 has
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.
The corporation may issue the whole or any part of its shares as partly
paid and subject to call for the remainder of the consideration to be paid
therefor. Upon the face or back of each stock certificate issued to represent
any such partly paid shares, upon the books and records of the corporation in
the case of uncertificated partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be stated.
Upon the declaration of any dividend on fully paid shares, the corporation shall
declare a dividend upon partly paid shares of the same class, but only upon the
basis of the percentage of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION ON CERTIFICATES
If the corporation is authorized to issue more than one (1) class of stock
or more than one (1) series of any class, then the powers, the designations, the
preferences, and the relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of
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stock; provided, however, that, except as otherwise provided in Section 202 of
the General Corporation Law of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate that the
corporation shall issue to represent such class or series of stock a statement
that the corporation will furnish without charge to each stockholder who so
requests the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and cancelled at the same time. The corporation
may issue a new certificate of stock or uncertificated shares in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require, or may require any transfer agent,
if any, for the shares to require, the owner of the lost, stolen or destroyed
certificate, or his, her or its legal representative, to give the corporation a
bond sufficient to indemnify it 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 such new certificate or uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the Delaware General Corporation Law shall
govern the construction of these Bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
8.7 DIVIDENDS
The directors of the corporation, subject to any restrictions contained in
the Certificate, may declare and pay dividends upon the shares of its capital
stock pursuant to the General Corporation Law of Delaware. Dividends may be paid
in cash, in property or in shares of the corporation's capital stock.
The directors of the corporation may set apart out of any of the funds of
the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any property of the
corporation, and meeting contingencies.
8.8 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
Board and may be changed by resolution of the Board.
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8.9 SEAL
This corporation may have a corporate seal, which may be adopted or
altered at the pleasure of the Board, and may use the same by causing it or a
facsimile thereof, to be impressed or affixed or in any other manner reproduced.
8.10 TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the
corporation, if any, of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer (as
determined by legal counsel to the corporation), it shall be the duty of the
corporation, as the corporation may so instruct its transfer agent, if any, to
issue a new certificate to the person entitled thereto, cancel the old
certificate, and record the transaction in its books.
8.11 REGISTERED STOCKHOLDERS
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, shall be entitled to hold liable for calls and
assessments the 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 another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE IX
AMENDMENTS
The Bylaws of the corporation may be adopted, amended or repealed by the
stockholders entitled to vote; provided, however, that the corporation may, in
its Certificate, confer the power to adopt, amend or repeal bylaws upon the
Board. The fact that such power has been so conferred upon the Board shall not
divest the stockholders of the power, nor limit their power to adopt, amend or
repeal bylaws. Notwithstanding the foregoing, in addition to any vote of the
holders of any class or series of stock of the corporation required by law or by
the Certificate, the amendment or repeal of all or any portion of Article II,
Section 3.2 (number of directors), Section 3.3 (election, qualification and term
of office of directors), Section 3.4 (resignation and vacancies), Section 3.14
(removal of directors), Article VI or this Article IX by the stockholders of the
corporation shall require the affirmative vote of the holders of at least
sixty-six and two-thirds percent (66 2/3%) of the voting power of the then
outstanding shares of voting stock entitled to vote generally in the election of
directors, voting together as a single class.
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CERTIFICATE BY SECRETARY OF ADOPTION OF AMENDED AND RESTATED BYLAWS
OF
NETGEAR, INC.
The undersigned hereby certifies that he is the duly elected, qualified
and acting Secretary of NETGEAR, Inc. and that the foregoing Amended and
Restated Bylaws, comprising 25 pages, were adopted as the Bylaws of the
corporation (i) on ________, 2003 by the Board of Directors of the corporation,
and (ii) on ________, 2003 by the stockholders of the corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed
the corporate seal on ____________, 2003.
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Secretary
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