EXHIBIT 3
AMENDED AND RESTATED
BY-LAWS
OF
CONCURRENT COMPUTER CORPORATION
(NOVEMBER 1996)
****
ARTICLE I
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Certificate of Incorporation
----------------------------
These by-laws, the powers of the corporation and of its directors and
stockholders, and all matters concerning the conduct and regulation of the
business of the corporation shall be subject to such provisions in regard
thereto as are set forth in the certificate of incorporation filed pursuant to
the General Corporation Law of the State of Delaware, which is hereby made a
part of these by-laws.
The term "certificate of incorporation" in these by-laws unless the
context requires otherwise, includes not only the original certificate of
incorporation filed to create the corporation but also all other certificates,
agreements of merger or consolidation, plans of reorganization, or other
instruments, howsoever designated, filed pursuant to the General Corporation
Law of the State of Delaware which have the effect of amending or
supplementing in some respect the corporation's original certificate of
incorporation.
ARTICLE II
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Annual Meeting
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An annual meeting of stockholders shall be held for the election of
directors and for the transaction of any other business for the transaction of
which the meeting shall have been properly convened on such day not a legal
holiday in the months of September, October, or November in each year, or upon
such other day as the board of directors may at any time otherwise determine,
at such place, within or without the State of Delaware, and at such time as
such day, place and time shall be fixed by the board of directors and
specified in the notice of the meeting. Any other proper business may be
transacted at the annual meeting. If the annual meeting for election of
directors shall not be held on the date designated therefor, the directors
shall cause the meeting to be held as soon thereafter as convenient.
ARTICLE III
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Special Meetings of Stockholders
--------------------------------
Special meetings of the stockholders may be held either within or without
the State of Delaware, at such time and place and for such purposes as shall
be specified in a call for such meeting made by the board of directors or by a
writing filed with the secretary signed by the president or by a majority of
the directors.
ARTICLE IV
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Notice of Stockholders' Meetings
--------------------------------
Whenever stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, which notice shall be
given not less than ten nor more than fifty days before the date of the
meeting, except where longer notice is required by law, to each stockholder
entitled to vote at such meeting, by leaving such notice with him or by
mailing it, postage prepaid, directed to him at his address as it appears upon
the records of the corporation. In case of the death, absence, incapacity or
refusal of the secretary, such notice may be given by a person designated
either by the secretary or by the person or persons calling the meeting or by
the board of directors. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting the corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than thirty 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.
An affidavit of the secretary or an assistant secretary or of the
transfer agent of the corporation that the notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
At an annual or special meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To
be properly brought before a meeting business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the board of directors, (b) otherwise properly brought before the meeting by
or at the direction of the board of directors, or (c) otherwise properly
brought before the meeting by a stockholder. For business to be properly
brought before a meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the secretary of the corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 70 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 10th
day following the day on which such notice of the date of the 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 meeting (a) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting, (b) the name and address, as they appear on the corporation's books,
of the stockholder proposing such business, (c) the class and number of shares
of the corporation which are beneficially owned by the stockholder, and (d)
any material interest of the stockholder in such business. Provided at all
times that stockholders may only give notice to the secretary of matters to be
brought before a meeting that are suitable and appropriate for consideration
by stockholders of a public company. Notwithstanding anything in the By-Laws
to the contrary, no business shall be conducted at any meeting except in
accordance with the procedures set forth in this paragraph. The chairman of
the 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 paragraph, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Only persons who are nominated in accordance with the procedures set
forth in this paragraph shall be eligible for election as directors at a
meeting of stockholders. Nominations of persons for election to the board of
directors of the corporation may be made at a meeting of stockholders by or at
the direction of the board of directors or by any stockholder of the
corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this paragraph. Such
nominations, other than those made by or at the direction of the board of
directors, shall be made pursuant to timely notice in writing to the secretary
of the corporation. To be timely, a stockholder's notice shall be delivered
to or mailed and received at the principal executive offices of the
corporation not less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 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 10th day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director (i)
the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the class and number
of shares of the corporation which are beneficially owned by such person and
(iv) any other information relating to such person that is required to be
disclosed in solicitations or proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including without limitation such
persons' written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); and (b) as to the stockholder giving
the notice (i) the name and address, as they appear on the corporation's
books, of such stockholder and (ii) the class and number of shares of the
corporation which are beneficially owned by such stockholder. At the request
of the board of directors any person nominated by the board of directors for
election as a director shall furnish to the secretary of the corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the procedures
set forth in this paragraph. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made
in accordance with the procedures prescribed by the By-Laws, and if he should
so determine, he shall so declare to the meeting and the defective nomination
shall be disregarded.
ARTICLE V
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Quorum of Stockholders: Stockholder List
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At any meeting of the stockholders, a majority (based on voting rights of
all shares) of all shares issued and outstanding and entitled to vote upon a
question to be considered at the meeting shall constitute a quorum for the
consideration of such question when represented at such meeting by the holders
thereof in person or by their duly constituted and authorized attorney, but a
less interest may adjourn any meeting from time to time, and the meeting may
be held as adjourned without further notice. When a quorum is present at any
meeting a majority of the stock so represented thereat and entitled to vote
shall, except where a larger vote is required by law, by the certificate of
incorporation or by these by-laws, decide any question brought before such
meeting.
The secretary or other officer having charge of the stock ledger 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 or town where the meeting is to be
held, which place shall have been specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. Said list
shall also be produced and kept at the time and place of the meeting during
the whole time thereof and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list of stockholders required by
this Article or the books of the corporation, or the stockholders entitled to
vote in person or by proxy at any meeting of stockholders.
ARTICLE VI
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Proxies and Voting
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Except as otherwise provided in the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of the capital stock held by such stockholder. Each
stockholder entitled to vote at a meeting of stockholders may authorize
another person or persons to act for him by proxy but (except as otherwise
expressly permitted by law) no proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period or so long
as it is coupled with an interest sufficient in law to support an irrevocable
power.
ARTICLE VII
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Stockholders' Record Date
-------------------------
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 to express consent to corporate action in writing without a
meeting, 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 or less than ten days before the date of
such meeting, nor more than sixty days prior to any other action.
If no record date is fixed:
(1) The record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held.
(2) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is expressed.
(3) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
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.
ARTICLE VII
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Board of Directors
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Except as otherwise provided by law or by the certificate of
incorporation, the business and affairs of the corporation shall be managed by
the board of directors.
The number of directors shall be such number, not fewer than three nor
more than twelve, as may be determined from time to time by resolution of the
board of directors. Directors shall be elected by the stockholders at the
annual meeting. Each director shall hold office until his successor is
elected and qualified or until his earlier resignation or removal. Any
director may resign at any time upon written notice to the corporation. No
director need be a stockholder.
ARTICLE IX
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Committees
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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 and may define
the number and qualifications which shall constitute a quorum of such
committee. Except as otherwise limited by law, any such committee, to the
extent provided in the resolution appointing such committee, shall have and
may exercise the powers of the board of directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it. In the absence
or disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the board
of directors to act at the meeting in the place of any such absent or
disqualified member.
ARTICLE X
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Meetings of the Board of Directors and of Committees
----------------------------------------------------
Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware
and at such times as the board may by vote from time to time determine.
Special meetings of the board of directors may be held at any place
either within or without the State of Delaware at any time when called by the
chairman of the board, secretary or two or more directors, reasonable notice
of the time and place thereof being given to each director.
Unless otherwise restricted by the certificate of incorporation or by
other provisions of these by-laws, (a) 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 of all members of the board or of such committee,
as the case may be, consent thereto in writing and such writing or writings
are filed with the minutes of proceedings of the board or committee, and (b)
members of the board of directors or of any committee designated by the board
may participate in a meeting thereof 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 shall constitute
presence in person at such meeting.
ARTICLE XI
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Quorum of the Board of Directors
--------------------------------
Except as otherwise expressly provided in the certificate of
incorporation or in these by-laws, a majority of the total number of directors
at the time in office shall constitute a quorum for the transaction of
business, but a less number may adjourn any meeting from time to time. Except
as otherwise so expressly provided, the vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
board of directors, provided, that the affirmative vote in good faith of a
majority of the disinterested directors, even though the disinterested
directors shall be fewer than a quorum, shall be sufficient to authorize a
contract or transaction in which one or more directors have an interest if the
material facts as to such interest and the relation of the interested
directors to the contract or transaction have been disclosed or are known to
the directors.
ARTICLE XII
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Waiver of Notice of Meetings
----------------------------
Whenever notice is required to be given under any provision of law or the
certificate of corporation or by-laws, a written waiver thereof, signed by the
person entitled to notice whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the stockholders, directors
or members of a committee of directors need be specified in any written waiver
of notice unless so required by the certificate of incorporation or the
by-laws.
ARTICLE XIII
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Officers and Agents
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The corporation shall have a president, secretary and treasurer, who
shall be chosen by the directors, each of whom shall hold his office until his
successor has been chosen and qualified or until his earlier resignation or
removal. The corporation may have such other officers and agents as are
desired, including without limitation a chairman of the board of directors and
an executive vice president, each of whom shall be chosen by the board of
directors and shall hold his office for such term and have such authority and
duties as shall be determined by the board of directors. The board of
directors may secure the fidelity of any or all of such officers or agents by
bond or otherwise. Any number of offices may be held by the same person.
Each officer shall, subject to these by-laws, have in addition to the duties
and powers herein set forth, such duties and powers as the board of directors
shall from time to time designate. In all cases where the duties of any
officer, agent or employee are not specifically prescribed by the by-laws, or
by the board of directors, such officer, agent or employee shall obey the
orders and instructions of the president. Any officer may resign at any time
upon written notice to the corporation.
ARTICLE XIV
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Chairman of the Board
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Except as otherwise voted by the board, the chairman of the board shall
preside at all meetings of the stockholders and of the board of directors at
which he is present.
President & Chief Executive Officer
-----------------------------------
The president and chief executive officer shall, subject to the direction
and under the supervision of the board of directors, have general and active
control of the corporation's affairs and business, and general supervision
over its officers, agents and employees. In the absence of and when so
designated by the chairman of the board, the president and chief executive
officer shall perform the duties and responsibilities of the chairman of the
board on a temporary basis in accordance with and as specifically prescribed
by the by-laws or as specifically prescribed by the board of directors. The
president and chief executive officer shall have custody of the treasurer's
bond, if any.
ARTICLE XV
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Secretary
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The secretary shall record all the proceedings of the meetings of the
stockholders and directors in a book, which shall be the property of the
corporation, to be kept for that purpose. The secretary shall perform such
other duties as shall be assigned to him by the board of directors. In the
absence of the secretary from any such meeting, a temporary secretary shall be
chosen, who shall record the proceedings of such meetings in the aforesaid
book.
ARTICLE XVI
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Treasurer
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The treasurer shall, subject to the direction and under the supervision
of the board of directors, have the care and custody of the funds and valuable
papers of the corporation, except his own bond, and he shall, except as the
board of directors shall generally or in particular cases authorize the
endorsement thereof in some other manner, have power to endorse for deposit or
collection all notes, checks, drafts and other obligations for the payment of
money to the corporation or its order. He shall keep, or cause to be kept,
accurate books of account, which shall be the property of the corporation.
ARTICLE XVII
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Removals
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The stockholders may, at any meeting called for the purpose, by vote of a
majority of the capital stock issued and outstanding and entitled to vote
thereon, remove any director from office.
The board of directors may, at any meeting called for the purpose, by
vote of a majority of their entire number remove from office any officer or
agent of the corporation or any member of any committee appointed by the board
of directors or by any committee of the board of directors or by any officer
or agent of the corporation.
ARTICLE XVIII
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Vacancies
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Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise and newly created directorships resulting
from any increase in the authorized number of directors, may be filled by a
majority of the directors then in office (though less than a quorum) or by a
sole remaining director, and each of the incumbents so chosen shall hold
office for the unexpired term in respect of which the vacancy occurred and
until his successor shall have been duly elected and qualified or for such
shorter period as shall be specified in the filling of such vacancy or, if
such vacancy shall have occurred in the office of director, until such a
successor shall have been chosen by the stockholders.
ARTICLE XIX
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Certificates of Stock
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Every holder of stock in the corporation shall be entitled to have a
certificate signed by, or in the name of the corporation by the chairman or
vice-chairman of the board of directors (if one shall be incumbent) or the
president or a vice-president and by the treasurer or an assistant treasurer,
or the secretary or an assistant secretary, certifying the number of shares
owned by him in the corporation. If such certificate is countersigned (1) by
a transfer agent other than the corporation or its employee, or (2) by a
registrar other than the corporation or its employee, any other signatures on
the certificate may be facsimile. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of
issue.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the 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 shall be set forth in full or summarized on the
face or back of the certificates which the corporation shall issue to
represent such class or series of stock or there shall be set forth on the
face or back of the certificates 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 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. Any restriction imposed upon
the transfer of shares or registration of transfer of shares shall be noted
conspicuously on the certificate representing the shares subject to such
restriction.
ARTICLE XX
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Loss of Certificate
-------------------
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the directors may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made against it
on account of the alleged loss, theft or destruction of any such certificate
or the issuance of such new certificate in its place and upon such other terms
or without any such bond which the board of directors shall prescribe.
ARTICLE XXI
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Seal
----
The corporate seal shall, subject to alteration by the board of
directors, consist of a flat-faced circular die with the word "Delaware"
together with the name of the corporation and the year of its organization cut
or engraved thereon. The corporate seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE XXII
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Execution of Papers
- ---------------------
Except as otherwise provided in these by-laws or as the board of
directors may generally or in particular cases authorize the execution thereof
in some other manner, all deeds, leases, transfers, contracts, bonds, checks,
drafts and other obligations made, accepted or endorsed by the corporation,
shall be signed by the president or by the treasurer.
ARTICLE XXIII
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Indemnification
---------------
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving, at the request of the corporation, another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments and fines actually imposed or
reasonably incurred by him in connection with such action, suit or proceeding
unless in any proceeding he shall be finally adjudged not to have acted in
good faith in the reasonable belief that his action was in the best interests
of the corporation; provided, however, that such indemnification shall not
cover liabilities in connection with any matter which shall be disposed of
through a compromise payment by such person, pursuant to a consent decree or
otherwise, unless such compromise shall be approved as in the best interest of
the corporation, after notice that it involves such indemnification, (a) by
the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, event or proceeding, or (b) if such a
quorum is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(c) by the stockholders. Such indemnification may include payment by the
corporation of expenses incurred in defending a civil or criminal action or
proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he shall be adjudicated to be not entitled to indemnification under these
provisions. The rights of indemnification hereby provided shall not be
exclusive of or affect other rights to which any director, officer, employee,
agent or stockholder may be entitled. As used in this paragraph, the terms
"director", "officer", "employee", "agent" or "stockholder" include their
respective heirs, executors and administrators, and an "interested" director
or officer is one against whom as such the proceeding in question or another
proceeding on the same or similar grounds is then pending. Any
indemnification to which a person is entitled under this paragraph shall be
provided although the person to be indemnified is no longer such a director,
officer, employee, agent or stockholder. Notwithstanding the foregoing, no
indemnification shall be provided hereunder to the extent then prohibited by
applicable law.
ARTICLE XXIV
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Fiscal Year
-----------
Except as from time to time otherwise provided by the board of directors,
the fiscal year of the corporation shall end on the last day of June of each
year.
ARTICLE XXV
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Amendments
----------
Except as otherwise provided by law or by the certificate of
incorporation, these by-laws, as from time to time altered or amended, may be
made, altered or amended at any annual or special meeting of the stockholders
called for the purpose, of which the notice shall specify the subject matter
of the proposed alteration or amendment or new by-law or the article or
articles to be affected thereby. If the certificate of incorporation so
provides, these by-laws may also be made, altered or amended by a majority of
the whole number of directors. Such action may be taken at any meeting of the
board of directors, of which notice shall have been given as for a meeting of
stockholders.