EXHIBIT 3.4
AMENDED AND RESTATED
BYLAWS
OF
TUT SYSTEMS, INC.
TABLE OF CONTENTS
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Page
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ARTICLE I - OFFICES..................................................... 1
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1.01 - PRINCIPAL OFFICE........................................... 1
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1.02 - OTHER OFFICES.............................................. 1
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ARTICLE II - MEETINGS OF SHAREHOLDERS................................... 1
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2.01 - PLACE OF MEETINGS.......................................... 1
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2.02 - ANNUAL MEETINGS............................................ 1
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2.03 - SPECIAL MEETINGS........................................... 2
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2.04 - NOTICE OF MEETINGS......................................... 3
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2.05 - MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE............... 4
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2.06 - ADJOURNED MEETINGS AND NOTICE THEREOF...................... 4
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2.07 - RECORD DATE FOR SHAREHOLDERS OF RECORD..................... 5
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2.08 - VOTING AT MEETINGS......................................... 6
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2.09 - QUORUM..................................................... 7
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2.10 - CONSENT OF ABSENTEES....................................... 8
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2.11 - ACTION WITHOUT MEETING..................................... 9
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2.12 - PROXIES.................................................... 10
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ARTICLE III - DIRECTORS................................................. 11
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3.01 - POWERS.................................................... 11
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3.02 - NUMBER OF DIRECTORS....................................... 14
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3.03 - ELECTION AND TERM OF OFFICE............................... 14
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3.04 - REMOVAL................................................... 15
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3.05 - VACANCIES................................................. 15
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3.06 - MEETINGS BY TELEPHONE CONFERENCE.......................... 16
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3.07 - ACTION WITHOUT MEETING.................................... 16
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3.08 - ORGANIZATION MEETING...................................... 16
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3.09 - SPECIAL MEETINGS.......................................... 17
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3.10 - ADJOURNMENT............................................... 17
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3.11 - WAIVER OF NOTICE.......................................... 18
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3.12 - QUORUM.................................................... 18
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3.13 - APPROVAL OF LOANS TO OFFICERS............................. 19
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ARTICLE IV - OFFICERS................................................... 19
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4.01 - OFFICERS................................................... 19
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4.02 - ELECTION................................................... 20
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4.03 - REMOVAL AND RESIGNATION.................................... 20
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4.04 - VACANCIES.................................................. 20
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4.05 - CHAIRMAN OF THE BOARD...................................... 21
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4.06 - PRESIDENT.................................................. 21
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4.07 - SECRETARY.................................................. 21
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4.08 - TREASURER.................................................. 22
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4.09 - SUBORDINATE OFFICERS....................................... 23
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ARTICLE V - SHARES OF STOCK............................................. 24
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5.01 - SHARE CERTIFICATES.......................................... 24
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5.02 - TRANSFER OF SHARES.......................................... 24
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5.03 - LOST OR DESTROYED CERTIFICATE............................... 25
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ARTICLE VI - MISCELLANEOUS.............................................. 25
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6.01 - INDEMNITY OF DIRECTORS..................................... 25
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6.02 - SHAREHOLDER INSPECTION OF ARTICLES AND BYLAWS.............. 26
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6.03 - MAINTENANCE AND INSPECTION OF RECORDS OF SHAREHOLDERS...... 26
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6.04 - SHAREHOLDER INSPECTION OF CORPORATE RECORDS................ 27
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6.05 - INSPECTION BY DIRECTORS.................................... 28
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6.06 - REPRESENTATION OF SHARES OF OTHER CORPORATIONS............. 28
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6.07 - ANNUAL REPORT.............................................. 29
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6.08 - ANNUAL STATEMENT OF GENERAL INFORMATION.................... 29
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ARTICLE VII - AMENDMENTS TO BYLAWS...................................... 30
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7.01 - AMENDMENT BY SHAREHOLDERS.................................. 30
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7.02 - AMENDMENT BY DIRECTORS..................................... 30
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ii
AMENDED AND RESTATED
BYLAWS
OF
TUT SYSTEMS, INC.
ARTICLE I - OFFICES
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1.01 - PRINCIPAL OFFICE
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The principal executive and business office of the corporation is hereby
fixed and located in the County of Contra Costa, State of California or such
other location as the board of directors may determine.
1.02 - OTHER OFFICES
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Branch or subordinate offices may at any time be established at any place
or places by the board of directors.
ARTICLE II - MEETINGS OF SHAREHOLDERS
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2.01 - PLACE OF MEETINGS
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All annual and all other meetings of shareholders shall be held at the
principal executive office of the corporation, or at any other place within or
without the State of California which may be designated either by the board of
directors, or by the written consent of all shareholders entitled to vote
thereat, provided such shareholder consent is given either before or after the
meeting and filed with the secretary of the corporation.
2.02 - ANNUAL MEETINGS
---------------
The annual meetings of shareholders shall be held on the first Thursday of
the fourth month following the end of each fiscal year at 10:00 a.m.; provided,
however, that should said day fall upon a legal holiday, then any such annual
meeting of shareholders shall be held at the same time and place on the next day
thereafter ensuing which is not a legal holiday. At such meetings, directors
shall be elected, reports of the affairs of the corporation shall be considered,
and any other business may be transacted which is within the powers of the
shareholders.
2.03 - SPECIAL MEETINGS
----------------
Special meetings of the shareholders, for any purpose or purposes
whatsoever, may be called at any time by any of (i) the president, (ii) the
board of directors, (iii) the chairman of the board, or (iv) one or more
shareholders holding shares in the aggregate entitled to cast not less than 10
percent of the votes at that meeting.
If a special meeting is called by any person or persons other than the
board of directors, such person shall make a request therefor in writing,
specifying (i) the date and time of such meeting, which shall be not less than
35 nor more than 60 days after the receipt of the request, and (ii) the general
nature of the business proposed to be transacted at the meeting. Such request
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the chairman of
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the board, the president, any vice president or the secretary of the
corporation. The officer receiving the request shall cause notice to be given
within 20 days to the shareholders entitled to vote, in accordance with the
provisions of Sections 2.4 and 2.5, and the notice shall set forth that a
meeting will be held at the time requested by the person or persons calling the
meeting. If the notice is not given within such 20-day period, the person(s)
requesting the meeting may give the notice.
2.04 - NOTICE OF MEETINGS
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All notices of meetings of shareholders, whether annual or special, shall
be sent or otherwise given not less than 10 nor more than 60 days before the
date of the meeting, except as provided in Section 2.03. The notice shall
specify the place, date and hour of the meeting and (i) in the case of a special
meeting, the general nature of the business to be transacted, or (ii) in the
case of the annual meeting, those matters which the board of directors, at the
time of giving the notice, intends to present for action by the shareholders.
The notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees whom, at the time of the notice, management
intends to present for election. The notice shall also state the general nature
of the proposal if action is proposed to be taken at any meeting for approval of
any of the following: (i) a contract or transaction in which a director has a
direct or indirect financial interest;
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(ii) an amendment of the articles of incorporation; (iii) a reorganization of
the corporation; (iv) a voluntary dissolution of the corporation; or (v) a
distribution in dissolution other than in accordance with the rights of any
outstanding preferred shares. Notwithstanding the absence of specific notice
thereof, any such action may nevertheless be presented to the meeting and be
validly acted upon by the shareholders if approved by all shareholders entitled
to vote thereon, unless they sign waivers of notice specifying the general
nature of the proposal so approved.
2.05 - MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
--------------------------------------------
Notice of any shareholders' meeting shall be given either personally or by
first-class mail or telegraphic or written communication, charges prepaid,
addressed to the shareholder at the address of that shareholder appearing on the
books of the corporation or given by the shareholder to the corporation for the
purpose of notice. If no such address appears on the corporation's books or has
been so given, notice shall be deemed to have been given if published at least
once in a newspaper of general circulation in the county where that office is
located or in any manner permitted by law. Notice shall be deemed to have been
given at the time when delivered personally, deposited in the mail, delivered to
a common carrier for transmission to the recipient, actually transmitted by
electronic means to the recipient by the
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person giving the notice, or sent by other means of written communication.
An affidavit of the mailing or other means of giving any notice of any
shareholders' meeting may be executed by the secretary, assistant secretary, or
any transfer agent of the corporation giving the notice, and filed and
maintained in the minute book of the corporation.
2.06 - ADJOURNED MEETINGS AND NOTICE THEREOF
-------------------------------------
Any shareholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of the majority of the
shares which are represented at the meeting either in person or by proxy, but in
the absence of a quorum.
It shall not be necessary to give any notice of an adjournment or of the
business to be transacted at an adjourned meeting other than by announcement at
the meeting at which such adjournment is taken. However, when any shareholders'
meeting, either annual or special, is adjourned for more than 45 days, or if
after the adjournment a new record date is fixed for the adjourned meeting
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the adjourned meeting. At any adjourned meetings, the
corporation may transact any business that might have been transacted at the
regular meeting.
2.07 - RECORD DATE FOR SHAREHOLDERS OF RECORD
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For purposes of determining which shareholders are entitled to receive
notice of any meeting, to vote, or to give consent to corporate action without a
meeting, the board of directors may fix a record date in advance of such meeting
or corporate action which shall not be less than l0 nor more than 60 days before
any such meeting or any such action without a meeting. Only shareholders of
record at the close of business on the date so fixed are entitled to notice and
to vote or to give consent, as the case may be, notwithstanding any transfer of
any shares on the books of the corporation after the record date, except as
otherwise provided in the articles of incorporation, by agreement, or in the
California General Corporation Law.
If the board of directors does not so fix a record date:
(a) The record date for determining shareholders entitled to receive
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held; and
(b) The re cord date for determining shareholders entitled to give
consent to corporate action in writing without a meeting (i) when no prior
action by the board has been taken, shall be the day on which the first written
consent is given, or (ii) when prior action of the board has been taken, shall
be at the
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close of business on the day on which the board adopts the resolution relating
to that action, or the 60th day before the date of such other action, whichever
is later.
2.08 - VOTING AT MEETINGS
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Except as otherwise provided in the articles of incorporation and in the
case of cumulative voting for directors, each shareholder is entitled to one
vote per share. The shareholders' vote may be by voice vote or by ballot;
provided, however, that any election for directors must be by ballot if demanded
by any shareholder before the voting has begun. On any matter other than the
election of directors, any shareholder may vote part of the shares in favor of
the proposal and refrain from voting the remaining shares or vote them against
the proposal, but if the shareholder fails to specify the number of shares which
the shareholder is voting affirmatively, it will be conclusively presumed that
the shareholder's approving vote is with respect to all shares that the
shareholder is entitled to vote. The affirmative vote of a majority of the
shares represented and voting, provided such shares voting affirmatively also
constitutes a majority of the number of shares required for a quorum, shall be
the act of the shareholders, unless the vote of a greater number or voting by
classes is required by California General Corporation Law or by the articles of
incorporation.
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Every shareholder entitled to vote at any election for directors shall have
the right to cumulate his votes by (i) giving one candidate a number of votes
equal to the number of directors to be elected multiplied by the number of votes
to which his shares are entitled, or (ii) distributing such cumulated votes on
the same principle among as many candidates as he chooses; provided that the
name of such candidate has been placed in nomination prior to the voting and
that at least one shareholder has given notice at the meeting, prior to the
voting, of an intention to cumulate votes. In any election of directors, the
candidates receiving the highest number of votes, up to the number of directors
to be elected, shall be elected. Votes against a director or not cast shall have
no effect.
2.09 - QUORUM
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The presence in person or by proxy of persons entitled to vote a majority
of the voting shares at any meeting shall constitute a quorum of the
shareholders for the transaction of business.
The shareholders present at a duly called or held meeting at which a quorum
is present may continue to do business until adjournment, notwithstanding the
withdrawal of one or more shareholders to leave less than a quorum, if any
action taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
2.10 - CONSENT OF ABSENTEES
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The transactions of any meeting of shareholders, either annual or special,
however called and noticed and wherever held, shall be as valid as though made
at a meeting duly held after regular call and notice if a quorum is present
either in person or by proxy and if, either before or after the meeting, each of
the shareholders entitled to vote who was not present in person or by proxy
signs a written waiver of notice or a consent to the holding of such meeting or
an approval of the minutes thereof. The waiver of notice or consent need not
specify either the business to be transacted or the purpose of any annual or
special meeting of shareholders, unless the action taken or proposed to be taken
is for approval of any of those matters specified in Section 2.04. All such
waivers, consents or approvals shall be filed with the corporate records or made
a part of the minutes of the meeting.
Attendance at a meeting, in person or by proxy, shall also constitute a
waiver of notice of that meeting, except when the person objects at the
beginning of the meeting to the transaction of any business because the meeting
has not been lawfully called or convened, and except that attendance at a
meeting is not a waiver of any right to object to the consideration of matters
required by law to be included in the notice of the meeting but not so included,
if that objection is expressly made at the meeting.
2.11 - ACTION WITHOUT MEETING
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Except as may be limited by the articles of incorporation and except for
the election of directors, any action which may be taken by vote of the
shareholders at any annual or special meeting may be taken without a meeting and
without prior notice if a consent in writing setting forth the action so taken
is signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Directors may be elected by written consent without a meeting only if the
written consents of all outstanding shares entitled to vote are obtained, except
that a vacancy in the board (other than a vacancy created by removal of a
director) not filled by the board may be filled by the written consent of the
holders of a majority of the outstanding shares entitled to vote.
All such consents shall be filed and maintained in the corporate records.
Any shareholder (or the shareholder's proxyholders, or a transferee of the
shares or a personal representative of the shareholder or their respective
proxyholders) giving a written consent may revoke the consent only by a writing
received by the corporation prior to the time that written consents of the
number of shares required to authorize the proposed action have been filed with
the secretary of the corporation. Such revocation is effective upon its receipt
by the secretary of the corporation.
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Unless the consents of all shareholders entitled to vote have been
solicited in writing:
(1) Notice of shareholder approval without a meeting by less than
unanimous written consent shall be given at least 10 calendar days before
the consummation of the action authorized by such approval, if the
corporate action concerns (i) a contract or transaction in which a director
has a direct or indirect financial interest under Section 310 of the
California Corporations Code, (ii) indemnification of agents of the
corporation, (iii) reorganization of the corporation, or (iv) a
distribution in dissolution other than in accordance with the rights of the
outstanding preferred shares; and
(2) Prompt notice shall be given of any other corporate action
approved by shareholders without a meeting by less than unanimous written
consent.
All such notices shall be given in the manner provided by Section 2.05.
2.12 - PROXIES
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Every person entitled to vote for directors or on any other matter shall
have the right to do so either in person or by one or more agents authorized by
a written proxy signed by the person and filed with the secretary of the
corporation. A proxy shall be deemed signed if the shareholder's name is placed
on the proxy (whether by manual signature, typewriting, telegraphic transmission
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or otherwise) by the shareholder or the shareholder's attorney-in-fact. A
validly executed proxy that does not state that it is irrevocable shall continue
in full force and effect unless (i) revoked by the person executing it, before
the vote pursuant to that proxy, by a writing delivered to the corporation
stating that the proxy is revoked, or by attendance at the meeting and voting in
person by the person executing the proxy, or by a subsequent proxy executed by
the same person and presented at the meeting; or (ii) written notice of the
death or incapacity of the maker of that proxy is received by the corporation
before the vote pursuant to that proxy is counted; provided, however, that no
proxy shall be valid after the expiration of 11 months from the date of the
proxy, unless another term of longer or shorter duration is specified in the
proxy. The revocability of a proxy that states on its face that is irrevocable
shall be governed by the provisions of Sections 705(e) and 705(f) of the
Corporations Code of California.
ARTICLE III - DIRECTORS
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3.01 - POWERS
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Except as reserved to the shareholders by law, the articles of
incorporation or these bylaws, all corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
controlled by, the board of
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directors. Without limiting the generality of the foregoing powers, the
directors shall have the following powers:
First: To conduct, manage and control the affairs and business of the
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corporation and to make such rules and regulations therefor not inconsistent
with law or with the articles of incorporation or these bylaws, as they may deem
best.
Second: To select and remove the officers, agents and employees of the
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corporation, to prescribe such powers and duties for them as may not be
inconsistent with law, with the articles of incorporation or with these bylaws
and to fix their compensation.
Third: To change the principal executive and business office of the
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corporation from one location to another as provided in Section 1.01; to fix and
locate from time to time one or more branch offices of the corporation within or
without the State of California, as provided in Section 1.02; to designate any
place within or without the State of California for the holding of any
shareholders' meeting or meetings except annual meetings; and to adopt, make and
use a corporate seal, to prescribe the forms of certificates of stock and to
alter the form of such seal and of such certificates from time to time as in
their judgment they may deem best, provided that such seal and such certificates
shall at all times comply with the provisions of law.
Fourth: To authorize the issue of shares of stock of the corporation from
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time to time, upon such terms as may be lawful, as
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dividends or in consideration of money paid, labor done or services actually
rendered to the corporation or for its benefit or in its formation or
reorganization, debts or securities canceled, or tangible or intangible property
actually received; but neither promissory notes of the purchaser, unless secured
by property other than the shares acquired or otherwise permitted by Section 408
of the General Corporation Law, nor future services shall constitute payment or
part payment for shares of the corporation.
Fifth: To borrow money and incur indebtedness for the purposes of the
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corporation and to cause to be executed and delivered therefor, in the corporate
name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations or other evidences of debt and securities therefor.
Sixth: To designate, by resolution adopted by a majority of the
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authorized number of directors, one or more committees, each consisting of two
or more directors, to serve at the pleasure of the board. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. Any such committee
shall have all the authority of the board to the extent provided in the
resolution of the board or in the bylaws, except with respect to:
(a) The approval of any action for which, under the General
Corporation Law of California, also requires approval of the shareholders or
approval of the outstanding shares;
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(b) The filling of vacancies on the board or in any committee;
(c) The fixing of compensation of the directors for serving on the
board or on any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the board which by
its express terms is not so amendable or repeal-able;
(f) A distribution to the shareholders of the corporation, except at
a rate, in a periodic amount or within a price range set forth in the articles
or determined by the board; or
(g) The appointment of other committees of the board or the members
thereof.
Seventh: To declare dividends at such times and in such amounts as the
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condition of the affairs of the corporation may warrant.
Eighth: Generally to exercise all of the powers and to perform all of the
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acts and duties that from time to time may be permitted by law appertaining to
their office.
3.02 - NUMBER OF DIRECTORS
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The authorized number of directors of the corporation shall be not less
than five nor more than nine, with the exact number of
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authorized directors to be fixed within the foregoing limits by the board of
directors or by the shareholders.
3.03 - ELECTION AND TERM OF OFFICE
---------------------------
The directors shall be elected at each annual meeting of shareholders and
may be elected at any special meeting of shareholders held for that purpose.
Each director shall hold office until his successor is elected and qualified, or
until his earlier death, resignation, removal or ineligibility.
3.04 - REMOVAL
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A director may be removed for cause by (i) the board, when such director
has been convicted of a felony or declared incompetent by court order, or (ii)
the superior court, at the suit of at least 10% of the shareholders of any class
of shares having found that the director has either committed fraudulent or
dishonest acts, or has grossly abused his authority with reference to the
corporation.
A director may be removed without cause by a majority vote of all
outstanding shares, provided that (i) where cumulative voting is in effect, such
director may not be removed over the objection of the number of shares required
to elect him, and (ii) where the articles of incorporation provide for the
election of a director by the shareholders of a certain class or series of
shares, such
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director may be removed only by the majority vote of the outstanding shares of
such class or series.
Except as provided in this Section 3.04, and any reduction of the
authorized number of directors notwithstanding, a director may not be removed
prior to the expiration of such director's term of office.
3.05 - VACANCIES
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Vacancies in the board of directors may be filled by a majority of the
remaining directors, though less than a quorum, or by a sole remaining director.
A vacancy in the board of directors shall be deemed to exist (i) in case of the
death, resignation, ineligibility or removal of any director, (ii) if the
authorized number of directors is increased, or (iii) if the shareholders fail,
at any annual or special meeting of shareholders at which any director or
directors are elected, to elect the full authorized number of directors to be
voted for at that meeting.
The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors. In the event that such a
vacancy is created by an event other than removal, any election by written
consent of the shareholders must be signed by holders of a majority of the
outstanding shares. If the board of directors accepts the resignation of a
director tendered to take effect at a future time, the board or the
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shareholders shall have the power to elect a successor to take office when the
resignation is to become effective.
3.06 - MEETINGS BY TELEPHONE CONFERENCE
--------------------------------
Members of the board may participate in a meeting through use of conference
telephone or similar communication equipment, so long as all members
participating in such meeting can hear one another.
3.07 - ACTION WITHOUT MEETING
----------------------
Any action required or permitted to be taken by the board of directors or
any committee thereof may be taken without a meeting if each member of the board
consents in writing to such action. Such consents shall be filed with the
minutes of the meetings of the board.
3.08 - ORGANIZATION MEETING
--------------------
Immediately following each annual meeting of shareholders, the board of
directors shall hold a regular meeting for the purpose of organization, election
of officers and the transaction of other business. Notice of such meeting is
hereby dispensed with.
3.09 - SPECIAL MEETINGS
----------------
Special meetings of the board of directors for any purpose or purposes may
be called at any time by (i) the chairman of the board, (ii) the president,
(iii) any vice president, (iv) the secretary, or (v) any two directors.
Written notice of the time and place of special meetings shall be delivered
personally to the directors or sent to each director
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by mail or by other form of written communication, charges prepaid, addressed to
him at his address as it appears upon the records of the corporation or, if it
is not so shown or is not readily ascertainable, at the place in which the
meetings of directors are regularly held. In case such notice is mailed, it
shall be deposited in the United States mail at least four days prior to the
date of the meeting. In case such notice is delivered personally or
telegraphed, it shall be so delivered or deposited with the telegraph company at
least 48 hours prior to the time of the meeting.
3.10 - ADJOURNMENT
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A majority of the directors present, whether or not a quorum is present,
may adjourn any directors' meeting to another time and place. If a meeting is
adjourned for more than 24 hours, notice of any adjournment to another time or
place shall be given in the manner specified in Section 3.09 prior to the time
of the adjourned meeting to the directors who were not present at the time of
adjournment.
3.11 - WAIVER OF NOTICE
----------------
The transactions at any meeting of the board of directors, however called
and noticed, or wherever held, shall be as valid as though such transactions had
occurred at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the directors not
present
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signs a written waiver of notice of or consent to holding the meeting or an
approval of the minutes thereof. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
3.12 - QUORUM
------
A majority of the authorized number of directors then holding office shall
constitute a quorum for the transaction of business. The act of the majority of
the directors at a meeting at which a quorum is present shall be the act of the
board of directors, unless a greater number is required by law, the articles of
incorporation or these bylaws. However, a meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors if any action taken is approved by at least a majority
of the required quorum for such meeting. The provisions of this Section 3.12
shall apply to action taken by any committee from time to time designated by the
board of directors.
3.13 - APPROVAL OF LOANS TO OFFICERS
-----------------------------
The corporation may, upon the approval of the Board of Directors alone,
make loans of money or property to, or guarantee the obligations of, any officer
of the corporation or its parent or subsidiary, whether or not a director, or
adopt an employee benefit plan or plans authorizing such loans or guarantees
provided that
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(i) no such loan to any one individual be in excess of $500,000 in the
aggregate; (ii) loans made in any one year may not exceed $1,000,000; (iii) all
such loans be approved by all outside directors (directors who are not directly
employed by the Company); (iv) the Board of Directors determines that such a
loan or guaranty or plan may reasonably be expected to benefit the corporation;
(v) the corporation has outstanding shares held of record by 100 or more persons
(determined as provided in Section 605 of the California Corporations Code) on
the date of approval by the Board of Directors; and (vi) the approval of the
Board of Directors is by vote sufficient without counting the vote of any
interested Director or Directors.
ARTICLE IV - OFFICERS
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4.01 - OFFICERS
--------
The officers of the corporation shall be a president, a secretary, a
treasurer, and such other officers with such titles and duties as may be
appointed in accordance with the provisions of Section 4.09. Any number of
offices may be held by the same person. The president shall be the chief
executive officer and the treasurer shall be the chief financial officer.
4.02 - ELECTION
--------
The officers of the corporation, except such officers as may be appointed
in accordance with the provisions of Sections 4.04 or
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4.09, shall be chosen annually by the board of directors; and each officer shall
hold his office until he has resigned or removed or is otherwise disqualified to
serve and his successor has been elected and qualified.
4.03 - REMOVAL AND RESIGNATION
-----------------------
Any officer may be removed, either with or without cause, by a majority of
the directors at the time in office, at any regular or special meeting of the
board, or, except in the case of an officer chosen by the board of directors, by
any officer upon whom such power of removal may be conferred by the board of
directors.
Any officer may resign at any time by giving written notice to the board of
directors or to the president or to the secretary of the corporation. Any such
resignation shall take effect at the date of the receipt of such notice or any
later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
4.04 - VACANCIES
---------
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to such office.
4.05 - CHAIRMAN OF THE BOARD
---------------------
The chairman of the board, if one has been appointed, shall, if present,
preside at all meetings of the board of directors and
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exercise and perform all such other powers and duties as may from time to time
be assigned to him by the board of directors or prescribed by these bylaws.
4.06 - PRESIDENT
---------
The president, subject to the board of directors, shall have general
supervision, direction and control of the business and of other officers and
employees of the corporation. He shall preside at all meetings of the
shareholders and, if there is no regular, appointed chairman of the board or if
such chairman is absent, at all meetings of the board of directors. He shall be
ex officio a member of all standing committees, including the executive
- ----------
committee, if any, and shall have general powers and duties of management,
together with such other powers and duties as may be prescribed by the board of
directors.
4.07 - SECRETARY
---------
The secretary shall keep, or cause to be kept, a book of minutes at the
principal executive and business office, or such other place as the board of
directors may order, of all meetings of directors and shareholders, with the
time and place of holding, whether regular or special and, if special, how
authorized, the notice thereof given, the names of those present at directors'
meetings, the number of shares present or represented at shareholders' meetings
and the proceedings thereof.
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The secretary shall keep, or cause to be kept, at the principal executive
and business office or at the office of the corporation's transfer agent, a
share register or a duplicate share register showing the names of the
shareholders and their addresses, the number and classes of shares held by each,
the number and the date of certificates issued for the same, and the number and
date of cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all the meetings
of the shareholders and of the board of directors required by these bylaws or by
law to be given, shall keep the seal of the corporation in safe custody and
shall have such other powers and shall perform such other duties as may be
prescribed by the board of directors or the bylaws.
4.08 - TREASURER
---------
The chief financial officer shall be the treasurer. The treasurer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
losses, capital, surplus and shares.
The treasurer shall deposit all moneys and other valuables in the name and
to the credit of the corporation with such depositaries as may be designated by
the board of directors. He shall be responsible for the proper disbursement of
the funds of
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the corporation as may be ordered by the board of directors and shall render to
the president or directors, whenever they request it, an account of all of his
transactions as treasurer and of the financial condition of the corporation. The
treasurer shall prepare a proper annual budget of income and expenses for each
calendar year, revised quarterly, for approval of or revision by the board of
directors and shall be responsible for the handling of finances in connection
therewith. He shall have such other powers and shall perform such other duties
as may be prescribed by the board of directors.
4.09 - SUBORDINATE OFFICERS
--------------------
The board of directors may appoint such vice presidents, assistant
treasurers and assistant secretaries and other subordinate 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 of directors may from time to time determine.
In the absence or disability of the president, treasurer or secretary, the
vice presidents, assistant treasurers and assistant secretaries, respectively,
in order of their rank as fixed by the board of directors or, if not ranked, the
subordinate officer designated by the board of directors shall perform all the
duties of such absent or disabled officer and, when so acting, shall have all
the powers of and be subject to all the restrictions upon such
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officer. Each subordinate officer shall have such other powers and shall perform
such other duties as from time to time may be prescribed for him by the board of
directors or these bylaws.
ARTICLE V - SHARES OF STOCK
---------------
5.01 - SHARE CERTIFICATES
------------------
Certificates representing shares of the capital stock of the corporation
shall be in such form as shall be approved by the board of directors, consistent
with the articles of incorporation and the laws of the State of California. A
certificate or certificates for shares of the capital stock of the corporation
shall be issued to each shareholder when such shares are fully paid, and the
board of directors may authorize the issuance of certificates or shares as
partly paid provided that these certificates shall state the amount of the
consideration to be paid for them and the amount paid. All such certificates
shall be signed by (i) the chairman or vice chairman of the board or the
president or a vice president, and (ii) by the treasurer or an assistant
---
financial officer or the secretary or any assistant secretary, certifying the
number of shares and the class or series of shares issued to the shareholder and
evidenced by such certificate. The corporation may issue, sell or transfer
fractional shares.
5.02 - TRANSFER OF SHARES
------------------
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Subject to the provisions of applicable securities and other laws and any
other valid contractual and other restrictions on transfer of shares, upon the
surrender to the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment 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.
5.03 - LOST OR DESTROYED CERTIFICATE
-----------------------------
The holder of any shares of stock of the corporation shall immediately
notify the corporation of any loss or destruction of the certificate therefor,
and the corporation may issue a new certificate in the place of any certificate
theretofore issued by it alleged to have been lost or destroyed, upon approval
of the board of directors. The board may, in its discretion, as a condition to
authorizing the issue of such new certificate, require the owner of the lost or
destroyed certificate, or his legal representative, to make proof satisfactory
to the corporation of the loss or destruction thereof and to give the
corporation a bond or other security, in such amount and with such surety or
sureties as the corporation may determine, as indemnity against any claim that
may be made against the corporation on account of any such certificate so
alleged to have been lost or destroyed.
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ARTICLE VI - MISCELLANEOUS
-------------
6.01 - INDEMNITY OF DIRECTORS
----------------------
The corporation shall, to the fullest extent permitted by the articles of
incorporation and the California General Corporation Law (and in excess of that
otherwise permitted by Section 317 of that law), indemnify each of its directors
and officers against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding, including
proceedings brought by or on behalf of the corporation, arising by reason of the
fact any such person is or was a director or officer of the corporation and
shall have power to advance to each such director or officer expenses incurred
in defending any such proceeding to the fullest extent permitted by that law.
6.02 - SHAREHOLDER INSPECTION OF ARTICLES AND BYLAWS
---------------------------------------------
The corporation shall keep at its principal executive and business office
the original or a copy of the articles of incorporation and the bylaws and any
amendments thereto, certified by the secretary, which shall be open to
inspection by shareholders at all reasonable times during office hours.
6.03 - MAINTENANCE AND INSPECTION OF RECORDS OF SHAREHOLDERS
-----------------------------------------------------
The corporation shall keep at its principal executive and business office
or at the office of its transfer agent or registrar (if one has been appointed),
as determined by resolution of the board of directors, a record of its
shareholders, giving the names
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and addresses of all shareholders and the number and class of shares held by
each shareholder.
A shareholder or shareholders of the corporation holding at least 5% in
the aggregate of the outstanding voting shares of the corporation may (i)
inspect and copy the records of shareholders' names, addresses and
shareholdings, during usual business hours on five business days' prior written
demand on the corporation, and (ii) obtain from the transfer agent of the
corporation, on written demand and on the tender of such transfer agent's usual
charges for such list, a list of the names and addresses of the shareholders who
are entitled to vote for the election of directors, and their shareholdings, as
of the most recent record date for which that list has been compiled or as of a
date specified by the shareholder after the date of demand. This list shall be
made available to any such shareholder or shareholders by the transfer agent on
or before the later of five business days after the demand is received or the
date specified in the demand as the date as of which the list is to be compiled.
The record of shareholders shall also be open to inspection on the written
demand of any shareholder or holder of a voting trust certificate, at any time
during usual business hours, for a purpose reasonably related to the holder's
interests as a shareholder or as the holder of a voting trust certificate. Any
inspection and copying under this Section may be made in person or
-29-
by an agent or attorney of the shareholder or holder of a voting trust
certificate making the demand.
6.04 - SHAREHOLDER INSPECTION OF CORPORATE RECORDS
-------------------------------------------
The accounting books and records and minutes of proceedings of the
shareholders and the board of directors and any committee or committees of the
board of directors shall be kept at such place or places designated by the board
of directors or, in the absence of such designation, at the principal executive
and business office of the corporation. The minutes shall be kept in written
form, and the accounting books and records shall be kept either in written form
or in any other form capable of being converted into written form. The minutes
and accounting books and records shall be open to inspection upon the written
demand of any shareholder or holder of a voting trust certificate, at any
reasonable time during usual business hours, for a purpose reasonably related to
the holder's interests as a shareholder or as the holder of a voting trust
certificate. The inspection may be made in person or by an agent or attorney and
shall include the right to copy and make extracts. These rights of inspection
shall extend to the records of each subsidiary corporation of the corporation.
6.05 - INSPECTION BY DIRECTORS
-----------------------
Every director shall have the absolute right at any reasonable time to
inspect all books, records and documents of every kind and the physical
properties of the corporation and each of its
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subsidiary corporations. This inspection by a director may be made in person or
by an agent or attorney, and the right of inspection includes the right to copy
and make extracts of documents.
6.06 - REPRESENTATION OF SHARES OF OTHER CORPORATIONS
----------------------------------------------
The president or, in the event of his absence or inability to serve, any
vice president and the secretary or assistant secretary of this corporation are
authorized to vote, represent and exercise, on behalf of this corporation, all
rights incidental to any and all shares of any other corporation standing in the
name of this corporation. The authority herein granted to such officers to vote
or represent on behalf of this corporation any and all shares held by this
corporation in any other corporation may be exercised either by such officers in
person or by any person authorized to do so by proxy or power of attorney duly
executed by such officers.
6.07 - ANNUAL REPORT
-------------
The annual report to shareholders referred to in Section 1501(a) of the
California Corporations Code is expressly waived subject to the limitations
thereof, but the board of directors of the corporation may cause to be sent to
the shareholders, not later than 120 days after the close of the fiscal or
calendar year, an annual report in such form as may be deemed appropriate by the
board of directors.
6.08 - ANNUAL STATEMENT OF GENERAL INFORMATION
---------------------------------------
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Within 90 days of incorporation and annually thereafter, the corporation
shall file with the Secretary of State, on the prescribed form, a statement
setting forth the authorized number of directors, the names and complete
business or residence addresses of all incumbent directors, the names and
complete business or residence addresses of the chief executive officer,
secretary and chief financial officer, the street address of its principal
executive office or principal business office in this state, and the general
type of business constituting the principal business activity of the
corporation, together with a designation of the agent of the corporation for the
purpose of service of process, all in compliance with section 1502 of the
California Corporations Code.
ARTICLE VII - AMENDMENTS TO BYLAWS
--------------------
7.01 - AMENDMENT BY SHAREHOLDERS
-------------------------
New bylaws may be adopted or these bylaws may be amended or repealed by the
vote or written consent of the shareholders entitled to exercise a majority of
the voting power of the corporation, except as otherwise provided by either
these bylaws or the articles of the corporation; provided, however, that if the
articles of incorporation set forth the number of authorized directors of the
corporation, the authorized number of directors
-32-
may be changed only by an amendment of the articles of incorporation.
7.02 - AMENDMENT BY DIRECTORS
----------------------
Subject to the rights of the shareholders as provided in Section 7.01 to
adopt, amend or repeal bylaws, bylaws may be adopted, amended, or repealed by
the board of directors; provided, however, that the board of directors may adopt
a bylaw or amendment of a bylaw changing the authorized number of directors only
for the purpose of fixing the exact number of directors within the limits
specified in the articles of incorporation or in Section 3.02 of these bylaws.
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CERTIFICATE OF SECRETARY
The undersigned, being the duly elected qualified and acting Secretary of
Tut Systems, Inc., a California corporation, does hereby certify that the
foregoing Amended and Restated Bylaws, comprising thirty (30) pages, are the
Amended and Restated Bylaws of such corporation, as duly adopted by the
unanimous vote of the Board of Directors and majority vote of the Shareholders
at a meeting duly called and held on the 20th day of June, 1995, at which a
quorum was at all times present acting.
Dated at Pleasant Hill, California, this 20th day of June, 1995.
/s/ Matthew Taylor
__________________________________
Matthew Taylor, Secretary
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CERTIFICATE OF AMENDMENT
OF AMENDED AND RESTATED BYLAWS OF
TUT SYSTEMS, INC.
Article III, Section 3.02 of the Amended and Restated Bylaws of Tut
Systems, Inc. (the "Company") was amended, effective May 20, 1998 by the
shareholders of the Company in order to conform the Bylaws to the Company's
Articles of Incorporation. Article III, Section 3.02 was amended to provide in
its entirety as follows:
"3.02 - NUMBER OF DIRECTORS
-------------------
Unless otherwise provided in the corporation's Articles of
Incorporation, the authorized number of directors of the corporation shall
be not less than five (5) nor more than nine (9), with the exact number of
authorized directors to be fixed within the foregoing limits by the board
of directors or by the shareholders."
This Certificate of Amendment of Amendment and Restated Bylaws shall be
effective as of this 20th day May, 1998.
/s/ Matthew Taylor
__________________________________
Matthew Taylor, Secretary