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EXHIBIT 3.1
NETWORK EQUIPMENT TECHNOLOGIES, INC.
BY-LAWS
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NETWORK EQUIPMENT TECHNOLOGIES, INC.
BY-LAWS
TABLE OF CONTENTS
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
MEETING OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
MEETINGS OF THE BOARD OF DIRECTORS . . . . . . . . . . . . . . . 7
COMMITTEES OF DIRECTORS . . . . . . . . . . . . . . . . . . . . 9
COMPENSATION OF DIRECTORS . . . . . . . . . . . . . . . . . . . 10
REMOVAL OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . 15
LOST CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . 16
TRANSFER OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . 17
FIXING RECORD DATE . . . . . . . . . . . . . . . . . . . . . . . . . 17
REGISTERED STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 18
DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CHECKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
FISCAL YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
INDEMNIFICATION OF OFFICERS, DIRECTORS
AND OTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
N.E.T. BY-LAWS 1 AS AMENDED AUGUST 8, 1995
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BY-LAWS OF
NETWORK EQUIPMENT TECHNOLOGIES, INC.
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the
election of directors shall be held in the City of Redwood City, State of
California, at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of Delaware
as shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of stockholders shall be held
on the second Tuesday in August if not a legal holiday, and, if a legal holiday,
then on the next secular day following, at 10:00 a.m., or such other date and
time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which the stockholders shall elect
members of the Board of
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Directors to succeed those whose terms expire and shall transact such other
business as may properly be brought before the meeting. At an annual meeting of
the stockholders, 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 specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or otherwise properly brought before the meeting by a stockholder. In
addition to any other applicable requirements, 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 at least sixty (60) days
prior to the meeting; provided, however, that in the event that less than sixty
(60) days' notice or prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth (1Oth) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was 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) such other information regarding the item of business to be
proposed by such stockholder as would be required to be disclosed in
solicitations for proxies to approve such proposed business pursuant to Schedule
14A under the Securities Exchange Act of 1934, as amended, (iii) the name and
record address of the stockholder proposing such
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business, (iv) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, (v) any material interest of the
stockholder in such business.
No business shall be conducted at the annual meeting except in
accordance with the procedure set forth in this Section 2 of Article II.
The chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 2 of
Article II, and if he or she should so determine, he or she shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
Section 3. Written notice of the annual meeting stating
the place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting.
Section 4. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders 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 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
N.E.T. BY-LAWS 4 AS AMENDED AUGUST 8, 1995
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place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the chief executive officer and
shall be called by the chief executive officer or secretary at the request in
writing of a majority of the Board of Directors. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating
the place, date and hour of the meeting and the purpose or purposes for which
the meeting is called shall be given not less than ten (10) nor more than sixty
(60) days before the date of the meeting to each stockholder entitled to vote at
such meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. 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 by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, 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 shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business
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may be transacted which might have been transacted at the meeting as originally
notified. 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.
Section 9. 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
statutes or of the certificate of incorporation, a different vote is required,
in which case such express provision shall govern and control the decision of
such question.
Section 10. Unless otherwise provided in the certificate
of incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder but no proxy shall be voted on
after three years from its date unless the proxy provides for a longer period.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall
constitute the whole board shall not be less than five (5) nor more than eight
(8). Within the limits above specified, the number of directors shall be
determined by resolution of the Board of Directors or by the stockholders at the
annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his or her successor
is elected and qualified. Directors need not be stockholders. Section 1 of this
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Article III may only be amended as set forth in Article VI of the Corporation's
Certificate of Incorporation.
Section 2. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by two-thirds (2/3) of the directors then in office, though less than a quorum,
or by a sole remaining director, and the directors so chosen shall hold office
until the next annual election and until their successors are duly elected and
shall qualify unless sooner displaced. If there are no directors in office, then
an election of directors may be held in the manner provided by statute.
Section 3. The business of the Corporation shall be
managed by or under the direction of its Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not proscribed by statute or by the certificate of incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected Board
of Directors shall be held at such time and place as shall be fixed by the vote
of the stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
Board of
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Directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors or as shall be specified in a written
waiver signed by all of the directors.
Section 6. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the Board.
Section 7. Special meetings of the Board may be called
by the chief executive officer on four (4) days' notice to each director by mail
or forty-eight (48) hours notice to each director either personally, via
overnight courier service, or by facsimile; special meetings shall be called by
the chief executive officer or secretary in like manner and on like notice on
the written request of two directors unless the board consists of only one
director, in which case special meetings shall be called by the chief executive
officer or secretary in like manner and on like notice on the written request of
the sole director.
Section 8. At all meetings of the Board, a majority of
the authorized number of directors shall constitute a quorum for the transaction
of business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors except as may
be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
N.E.T. BY-LAWS 8 AS AMENDED AUGUST 8, 1995
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Section 9. Unless otherwise restricted by the
certificate of incorporation or these By-Laws any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 10. Unless otherwise restricted by the
certificate of incorporation or these By-Laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee
who may replace any absent or disqualified member at any meeting of the
committee.
In the absence of disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he, she, or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
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Any such committee, to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the powers or
authority in reference to amending the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution or the certificate of incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors.
Section 12. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the
certificate of incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation
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therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 14. Unless otherwise restricted by the
certificate of incorporation or these By-Laws, any director or the entire Board
of Directors may be removed with cause by the holders of a majority of shares
entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the
statutes or of the certificate of incorporation or of these ByLaws, notice is
required to be given to any director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his or her address as it appears
on the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors, institutional stockholders and
affiliates may also be given via overnight courier service or facsimile.
Section 2. Whenever any notice is required to be given
under the provisions of the statutes or of the certificate of incorporation or
of these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
N.E.T. BY-LAWS 11 AS AMENDED AUGUST 8, 1995
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ARTICLE V
Section 1. Generally. The officers of the Corporation
shall consist of a Chairman of the Board or a Chief Executive Officer or both,
one or more Vice Presidents, a Secretary, a Chief Financial Officer or a
Treasurer or both and such other officers, including one or more assistant
secretaries and assistant treasurers, as may from time to time be appointed by
the Board of Directors. Officers shall be elected by the Board of Directors.
Each officer shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. The Chairman of
the Board shall be a member of the Board of Directors. Any number of offices may
be held by the same person.
Section 2. Chairman of the Board. The Chairman of the
Board, if any, shall preside at all meetings of the Board of Directors and of
the stockholders at which he or she shall be present. He or she shall have and
may exercise such powers as are, from time to time assigned to his or her by the
Board and as may be provided by law. In the absence of the Chairman of the
Board, the Vice Chairman of the Board, if any, shall preside at all meetings of
the Board of Directors and of the stockholders at which he or she shall be
present. He or she shall have and may exercise such powers as are, from time to
time, assigned to his or her by the Board and as may be provided by law.
Section 3. Chief Executive Officer. The Chief Executive
Officer shall be the chief executive officer of the Corporation. Subject to the
provisions of these by-laws and to the direction of the Board of Directors, he
or she shall have the responsibility for the general management and control of
the business and affairs of the Corporation and shall perform all duties and
have all powers which are commonly incident to the office of chief executive or
which
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are delegated to him or her by the Board of Directors. The Chief Executive
Officer shall be responsible for all resolutions, orders, and directives of the
Board of Directors being carried into effect and may sign and execute, in the
name of the Corporation, all stock certificates, deeds, mortgages, bonds,
contracts and other instruments, and shall have general supervision and
direction of all of the other officers, employees, and agents of the
Corporation.
Section 4. Vice President. One or more Vice Presidents
shall be designated by the Board to perform the duties and exercise the powers
of the Chief Executive Officer in the event of the Chief Executive Officer's
absence or disability. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for them
respectively by the Board of Directors, the bylaws, or the Chief Executive
Officer.
Section 5. Chief Financial Officer. The Chief Financial
Officer shall control, audit, and arrange the financial affairs of the
Corporation and shall keep and maintain adequate and correct accounts of the
Corporation's properties and business transactions and prepare and deliver such
financial reports and statements as may be requested by the Board of Directors
or as may be required by law and in general shall perform all the duties
incident to the office of Chief Financial Officer and such other duties as from
time to time may be assigned by the Board of Directors. The Chief Financial
Officer shall also be responsible for all functions and duties of the treasurer
of the Corporation, except if and to the extent responsibility for such
functions and/or duties is assigned to a separate officer designated by the
Board of Directors as the Treasurer of the Corporation. It shall be the duty of
the Assistant Treasurers to assist the Chief Financial Officer, and the
Treasurer, if any, in the performance of their duties and to perform such other
duties
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as from time to time as may be assigned by the Board of Directors.
Section 6. Secretary. The Secretary shall issue all
authorized notices for all meetings of the stockholders and the Board of
Directors. The Secretary shall keep minutes of all meetings of the stockholders
and the Board of Directors. 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, the number of
shares present or represented at stockholders' meetings, and the proceedings
thereof. The Secretary shall have charge of the corporate books and shall
perform such other duties as the Board of Directors may from time to time
prescribe. It shall be the duty of the Assistant Secretaries to assist the
Secretary in the performance of his or her duties. In addition, the Chief
Executive Officer may direct any Assistant Secretary to assume and perform the
duties of the Secretary in the absence or disability of the Secretary, and each
Assistant Secretary shall perform such other duties and have such other powers
as the Board of Directors or the Chief Executive Officer shall designate from
time to time.
Section 7. Delegation of Authority. The Board of
Directors may from time to time delegate the powers or duties of any officer to
any other officers or agents, notwithstanding any provision hereof.
Section 8. Removal. Any officer of the Corporation may
be removed at any time, with or without cause, by the Board of Directors.
Section 9. Unless otherwise directed by the Board of
Directors, the Chairman of the Board, or the Chief Executive Officer or any
officer of the Corporation
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authorized by the Chairman of the Board or the Chief Executive Officer shall
have power to vote and otherwise act on behalf of the Corporation, in person or
by proxy, at any meeting of stockholders with respect to any action of
stockholders of any other Corporation which this Corporation may hold securities
and otherwise to exercise any and all rights and powers which this Corporation
may possess by reason of its ownership of securities in such other Corporation.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the Corporation
shall be entitled to have a certificate, signed by, or in the name of the
Corporation by, the Chairman or Vice Chairman of the Board of Directors, or the
chief executive officer or a vice president and the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by his or her in the Corporation.
Certificates may be issued for partly paid shares and, in such
case, upon the face or back of the certificates issued to represent any such
partly paid shares, the total amount of the consideration to be paid therefor
and the amount paid thereon shall be specified.
If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, 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 which the Corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation
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Law of Delaware, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate which 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,
designations, preferences and 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.
Section 2. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he or she were such officer, transfer agent or registrar at the date of
issue.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his or her legal representative, to advertise the same in such
manner as it shall require and/or to give the Corporation a bond in such sum as
it may direct as indemnity against any claim that may
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be made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
FIXING RECORD DATE
Section 5. 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 of Directors may fix, in advance,
a record date, which shall not be more than sixty (60) nor less than ten (10)
days before the date of such meeting, nor more than sixty (60) days prior to any
other 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; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner and to hold liable for
calls and
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assessments a person registered on its books as the owner of shares
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the Board of Directors at any regular or special
meetings, pursuant to law. Dividends may be paid in cash, in property or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purposes as the directors shall think conducive to the interest
of the Corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
N.E.T. BY-LAWS 18 AS AMENDED AUGUST 8, 1995
20
FISCAL YEAR
Section 4. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SEAL
Section 5. The Board of Directors may adopt a corporate
seal having inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Delaware." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
(a) Indemnification in Actions Other Than Those Brought by the
Corporation. The corporation shall indemnify and hold harmless, to the
fullest extent permitted by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of such amendment, only to
the extent that such amendment permits the corporation to provide broader
indemnification rights than such law permitted the corporation to provide prior
to such amendment), 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 he or she is
or was a director or officer of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding. Except as provided in
N.E.T. BY-LAWS 19 AS AMENDED AUGUST 8, 1995
21
paragraph (d) of this Section 6, the corporation shall be required to
indemnify a person in connection with a proceeding (or part thereof) initiated
by such person only if the proceeding (or part thereof) was authorized by the
Board of Directors of the corporation.
(b) Indemnification in Actions Brought By or on Behalf of the
Corporation. The corporation shall indemnify and hold harmless, to the fullest
extent permitted by the Delaware General Corporation Law, as the same exists or
may hereafter be amended, 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 he or she is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, against expenses (including attorney's fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit.
(c) Expenses; Prepayment. The corporation shall pay the
expenses (including attorneys' fees) incurred by a director or officer who has
been successful on the merits or otherwise in defending any action, suit or
proceeding referenced in paragraphs (a) and (b) of this Section 6 and shall pay
such expenses in advance of the final disposition of such matter upon receipt of
an undertaking by the director or officer to repay all amounts advanced if it
should be ultimately determined that the director or officer is not entitled to
be indemnified under this Article or otherwise.
(d) Indemnification Procedure; Claims. Any indemnification
under paragraphs (a) and (b) of this Section
N.E.T. BY-LAWS 20 AS AMENDED AUGUST 8, 1995
22
6 (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 office is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in paragraphs (a) and (b). If a claim
for indemnification or payment of expenses under Section 6 of this Article is
not paid in full within sixty days after a written claim therefor has been
received by the corporation, the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part, shall be entitled
to be paid the expense of prosecuting such claim.
(e) Indemnification of Others. The Board of Directors, in its
discretion, shall have the power on behalf of the corporation to indemnify any
person, other than a director or officer, made a party to any action, suit or
proceeding by reason of the fact that he or she, or his or her testator or
intestate, is or was an employee or agent of the corporation and to pay the
expenses incurred by any such person in defending such action, suit or
proceeding in advance of its final disposition.
(f) Non-exclusivity of Rights. The indemnification and
advancement of expenses provided by or granted pursuant to Section 6 of this
Article VII shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders, or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
(g) Other Indemnification. The corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a director,
officer, employee or
N.E.T. BY-LAWS 21 AS AMENDED AUGUST 8, 1995
23
agent of another corporation, partnership, joint venture, trust, enterprise or
nonprofit entity shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture, trust,
enterprise or nonprofit enterprise.
(h) Insurance. The corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation against any liability asserted against him or her and incurred by
him or her in such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liability under the provisions of this Section 6.
(i) Successor Entities. For purposes of Section 6 of this
Article VII, references to "the corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued would have had power and authority to indemnify its
directors, officers, employees and agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation shall stand in the same
position under the provisions of this Section 6 of Article VII with respect to
the resulting or surviving corporation as he or she would have with respect to
such constituent corporation if its separate existence had continued.
N.E.T. BY-LAWS 22 AS AMENDED AUGUST 8, 1995
24
(j) Survival of Rights; Amendment or Repeal. The
indemnification and advancement of expenses provided by, or granted pursuant to
this Article VII shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person. Any repeal or modification of the foregoing provisions of
Section 6 of this Article VII shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the
time of such repeal or modification.
ARTICLE VIII
AMENDMENTS
Section 1. These By-Laws may be altered, amended or
repealed or new By-Laws may be adopted by the stockholders or by the Board of
Directors pursuant to the provisions of the certificate of incorporation at any
regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors if notice of
such alteration, amendment, repeal or adoption of new By-Laws be contained in
the notice of such special meeting.
END
N.E.T. BY-LAWS 23 AS AMENDED AUGUST 8, 1995