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EXHIBIT 3.2
BYLAWS
OF
NETRO CORPORATION
* * * * *
ARTICLE 1
Offices
Section 1.01. Registered Office. The registered office shall be in the
City of Wilmington, County of New Castle/City of Dover, County of Kent, State of
Delaware.
Section 1.02. Other Offices. 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.
Section 1.03. Books. The books of the Corporation may be kept within or
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 2
MEETINGS OF STOCKHOLDERS
Section 2.01. Time And Place Of Meetings. All meetings of stockholders
shall be held at such place, either within or without the State of Delaware, on
such date and at such time as may be determined from time to time by the Board
of Directors (or the Chairman in the absence of a designation by the Board of
Directors).
Section 2.02. Annual Meetings. An annual meeting of stockholders,
commencing with the year 2002, shall be held for the election of directors and
to transact such other business as may properly be brought before the meeting.
Section 2.03. Special Meetings. Special meetings of stockholders may be
called by the Board of Directors or the Chairman of the Board and shall be
called by the Secretary at the request in writing of holders of record of a
majority of the outstanding capital stock of the Corporation entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
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Section 2.04. Notice of Meetings and Adjourned Meetings; Waivers of
Notice. (a) 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, if any, date and hour of the meeting, the means of remote
communications, if any, by which stockholders and proxy holders may be deemed to
be present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Unless
otherwise provided by the General Corporation Law of the State of Delaware
("Delaware Law"), such notice shall be given not less than 10 nor more than 60
days before the date of the meeting to each stockholder of record entitled to
vote at such meeting. Unless these bylaws otherwise require, when a meeting is
adjourned to another time or place (whether or not a quorum is present), notice
need not be given of the adjourned meeting if the time and place, if any,
thereof and the means of remote communications, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such
adjourned meeting 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 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.
(b) A written waiver of any such notice signed by the person entitled
thereto, or a waiver by electronic transmission by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the 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. Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Section 2.05. Quorum. Unless otherwise provided under the certificate
of incorporation or these bylaws and subject to Delaware Law, the presence, in
person or by proxy, of the holders of a majority of the shares of the
outstanding capital stock of the Corporation entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders present in person or represented by proxy may
adjourn the meeting, 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 may be transacted
which might have been transacted at the meeting as originally notified.
Section 2.06. Voting. (a) Unless otherwise provided in the certificate
of incorporation and subject to Delaware Law, each stockholder shall be entitled
to one vote for each outstanding share of capital stock of the Corporation held
by
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such stockholder. Any share of capital stock of the Corporation held by the
Corporation shall have no voting rights. Unless otherwise provided in Delaware
Law, the certificate of incorporation or these bylaws, the affirmative vote of a
majority of the shares of capital stock of the Corporation present, in person or
by written proxy, at a meeting of stockholders and entitled to vote on the
subject matter shall be the act of the stockholders.
(b) Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him by written proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
Section 2.07. Action by Consent. Any action required or permitted to be
taken at any annual or special meeting of stockholders may be taken only upon
the vote of stockholders at an annual or special meeting duly noticed and called
in accordance with Delaware Law and may not be taken by written consent of
stockholders without a meeting.
Section 2.08. Organization. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, or in his absence or if
one shall not have been elected, the director designated by the vote of the
majority of the directors present at such meeting, shall act as chairman of the
meeting. The Secretary (or in his absence or inability to act, the person whom
the chairman of the meeting shall appoint secretary of the meeting) shall act as
secretary of the meeting and keep the minutes thereof.
Section 2.09. Order of Business. The order of business at all meetings
of stockholders shall be as determined by the chairman of the meeting.
Section 2.10. Nomination of Directors. Only persons who are nominated
in accordance with the procedures set forth in these bylaws shall be eligible to
serve as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders (a) by or
at the direction of the Board of Directors or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 2.10, who shall be entitled to vote for the
election of directors at the meeting and who complies with the notice procedures
set forth in this Section 2.10. 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 the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 90th calendar day
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is more than 30
calendar days before or after such anniversary date or that no annual meeting
was held in the prior year, notice by the stockholder to be timely must be so
delivered not later than the close of business on the later of the 90th calendar
day prior to such annual meeting or the
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10th calendar day following the calendar day on which public announcement of the
date of such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting commence a new time
period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934 (the "SEC
PROXY RULES") (including such person's 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 to
serve as a director of the Corporation unless nominated in accordance with the
procedures set forth in this bylaw. 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 bylaws, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of
this Section 2.10, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, and the rules and
regulations thereunder with respect to the matters set forth in this Section
2.10.
Section 2.11. Notice of Business at an Annual Meeting. At any annual
meeting of the stockholders, only such business shall be conducted as shall have
been brought before the meeting (a) by or at the direction of the Board of
Directors or (b) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of the notice provided for in this Section 2.11,
who shall be entitled to vote at such meeting and who complies with the notice
procedures set forth in this Section 2.11. 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 shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 90th calendar day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 calendar days before or after such
anniversary date or that no annual meeting was held in the prior year, notice by
the stockholder to be timely must be so delivered not later than the close of
business on the later of the 90th calendar day prior to such annual meeting or
the 10th calendar day following the calendar day on which public announcement of
the date of such meeting is first made by
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the Corporation. In the event any business other than nominations is properly
brought by a stockholder before an annual meeting less than 90 calendar days
prior to such annual meeting pursuant to the proviso in the foregoing sentence,
the Board's proxy may confer discretionary authority on its holder to vote on
such business for which notice is received after public announcement of the date
of such meeting is first made by the Corporation. 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, (d) any material
interest of the stockholder in such business and (e) any other information that
may be required with respect to such proposal under the SEC Proxy Rules.
Notwithstanding anything in the bylaws to the contrary, no business shall be
conducted at an annual stockholder meeting except in accordance with the
procedures set forth in this Section 2.11. 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 and in accordance with the provisions of the
bylaws, 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. Notwithstanding the foregoing provisions of this Section 2.11, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, and the rules and regulations thereunder with respect to
the matters set forth in this Section 2.11.
Section 2.12. Notice of Business at a Special Meeting. Only such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting by (i) the person or persons calling such
meeting pursuant to Section 2.03 of these bylaws and, (ii) if such meeting is
called at the request of stockholders, by the Board of Directors.
ARTICLE 3
DIRECTORS
Section 3.01. General Powers. Except as otherwise provided in Delaware
Law or the certificate of incorporation, the business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors.
Section 3.02. Number, Election and Term of Office. The Board of
Directors shall consist of not less than three nor more than nine directors,
with the exact number of directors to be determined from time to time solely by
resolution adopted by the affirmative vote of a majority of the entire Board of
Directors. The directors shall be divided into three classes, designated Class
I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. Except as
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otherwise provided in the certificate of incorporation, each director shall
serve for a term ending on the date of the third annual meeting of stockholders
next following the annual meeting at which such director was elected.
Notwithstanding the foregoing, each director shall hold office until such
director's successor shall have been duly elected and qualified or until such
director's earlier death, resignation or removal. Directors need not be
stockholders.
Section 3.03. Quorum and Manner of Acting. Unless the certificate of
incorporation or these bylaws require a greater number, a majority of the total
number of directors shall constitute a quorum for the transaction of business,
and the affirmative vote of a majority of the directors present at meeting at
which a quorum is present shall be the act of the Board of Directors. When a
meeting is adjourned to another time or place (whether or not a quorum is
present), 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 Board of Directors may transact any business which
might have been transacted at the original meeting. If a quorum shall not be
present at any meeting of the Board of Directors the directors present thereat
shall adjourn the meeting, from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 3.04. Time and Place of Meetings. The Board of Directors shall
hold its meetings at such place, either within or without the State of Delaware,
and at such time as may be determined from time to time by the Board of
Directors (or the Chairman in the absence of a determination by the Board of
Directors).
Section 3.05. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of stockholders, on
the same day and at the same place where such annual meeting shall be held.
Notice of such meeting need not be given. In the event such annual meeting is
not so held, the annual meeting of the Board of Directors may be held at such
place either within or without the State of Delaware, on such date and at such
time as shall be specified in a notice thereof given as hereinafter provided in
Section 3.07 herein or in a waiver of notice thereof signed by any director who
chooses to waive the requirement of notice.
Section 3.06. Regular Meetings. After the place and time of regular
meetings of the Board of Directors shall have been determined and notice thereof
shall have been once given to each member of the Board of Directors, regular
meetings may be held without further notice being given.
Section 3.07. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President and shall
be called by the Chairman of the Board, President or Secretary on the written
request of three directors. Notice of special meetings of the Board of Directors
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shall be given to each director at least forty-eight hours before the date and
time of the meeting in such manner as is determined by the Board of Directors or
the Chairman of the Board, in the absence of such determination.
Section 3.08. Committees. The Board of Directors may 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 or disqualification of a member of
a committee, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members 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. 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 power or authority in reference
to the following matter: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by Delaware Law to be
submitted to the stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the Corporation. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
Section 3.09. Action by Consent. Unless otherwise restricted by the
certificate of incorporation or these bylaws, 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 of Directors or
committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions, are filed with the minutes of proceedings of the Board of
Directors or committee. Such filing shall be in paper form.
Section 3.10. Telephonic Meetings. Unless otherwise restricted by the
certificate of incorporation or these bylaws, 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 such committee, as the case may be, by
means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Section 3.11. Resignation. Any director may resign at any time by
giving notice in writing or by electronic transmission to the Board of Directors
or to the Secretary of the Corporation. The resignation of any director shall
take effect upon receipt of notice thereof or at such later time as shall be
specified in such notice; and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
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Section 3.12. Vacancies. Unless otherwise provided in the certificate
of incorporation, vacancies on the Board of Directors resulting from death,
resignation, removal or otherwise and newly created directorships resulting from
any increase in the number of directors may be filled solely by a majority of
the directors then in office (although less than a quorum) or by the sole
remaining director. Each director so elected shall hold office for a term that
shall coincide with the term of the Class to which such director shall have been
elected. If there are no directors in office, then an election of directors may
be held in accordance with Delaware Law. Unless otherwise provided in the
certificate of incorporation, when one or more directors shall resign from the
Board, effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in the filling of the other vacancies.
Section 3.13. Removal. No director may be removed from office by the
stockholders except for cause with the affirmative vote of the holders of not
less than a majority of the total voting power of all outstanding securities of
the corporation then entitled to vote generally in the election of directors,
voting together as a single class.
Section 3.14. Compensation. Unless otherwise restricted by the
certificate of incorporation or these bylaws, the Board of Directors shall have
authority to fix the compensation of directors, including fees and reimbursement
of expenses.
ARTICLE 4
OFFICERS
Section 4.01. Principal Officers. The principal officers of the
Corporation shall be a President, one or more Vice Presidents, a Treasurer and a
Secretary who shall have the duty, among other things, to record the proceedings
of the meetings of stockholders and directors in a book kept for that purpose.
The Corporation may also have such other principal officers, including one or
more Controllers, as the Board may in its discretion appoint. One person may
hold the offices and perform the duties of any two or more of said offices,
except that no one person shall hold the offices and perform the duties of
President and Secretary.
Section 4.02. Election, Term of Office and Remuneration. The principal
officers of the Corporation shall be elected annually by the Board of Directors
at the annual meeting thereof. Each such officer shall hold office until his
successor is elected and qualified, or until his earlier death, resignation or
removal. The remuneration of all officers of the Corporation shall be fixed by
the Board of Directors. Any vacancy in any office shall be filled in such manner
as the Board of Directors shall determine.
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Section 4.03. Subordinate Officers. In addition to the principal
officers enumerated in Section 4.01 herein, the Corporation may have one or more
Assistant Treasurers, Assistant Secretaries and Assistant Controllers and such
other subordinate officers, agents and employees as the Board of Directors may
deem necessary, each of whom shall hold office for such period as the Board of
Directors may from time to time determine. The Board of Directors may delegate
to any principal officer the power to appoint and to remove any such subordinate
officers, agents or employees.
Section 4.04. Removal. Except as otherwise permitted with respect to
subordinate officers, any officer may be removed, with or without cause, at any
time, by resolution adopted by the Board of Directors.
Section 4.05. Resignations. Any officer may resign at any time by
giving notice in writing or by electronic transmission to the Board of Directors
(or to a principal officer if the Board of Directors has delegated to such
principal officer the power to appoint and to remove such officer). The
resignation of any officer shall take effect upon receipt of notice thereof or
at such later time as shall be specified in such notice; and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 4.06. Powers and Duties. The officers of the Corporation shall
have such powers and perform such duties incident to each of their respective
offices and such other duties as may from time to time be conferred upon or
assigned to them by the Board of Directors.
ARTICLE 5
INDEMNIFICATION
Section 5.01. Indemnification of Directors and Officers. (a) Third
Party Actions. The Corporation shall indemnify and hold harmless each person who
was or is a party or is threatened to be made a party to, or is involved in any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement (if such settlement is
approved in advance by the Corporation) actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon
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a plea of nolo contendere or its equivalent, shall not, in itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) Actions by or in the Right of the Corporation. The Corporation
shall indemnify and hold harmless each person who was or is a party or is
threatened to be made a party to, or is involved in any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) and amounts paid in settlement (if such settlement is approved in advance
by the Corporation) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in manner the person reasonably believed to be in or not
opposed to the best interests of the Corporation, except that, if applicable law
so provides, no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper. Notwithstanding any other provision of this Article 5,
no person shall be indemnified hereunder for any expenses or amounts paid in
settlement with respect to any action to recover short-swing profits under
Section 16(b) of the Securities Exchange Act of 1934, as amended.
Section 5.02. Indemnification of Employees and Agents. The Corporation
may, by action of its Board of Directors, provide indemnification to such of the
employees and agents of the Corporation to such extent and to such effect as the
Board of Directors shall determine to be appropriate and authorized by Delaware
Law.
Section 5.03. Successful Defense. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
5.01 and Section 5.03, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection therewith.
Section 5.04. Determination of Conduct. Any indemnification under
Section 5.01 (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that the indemnification
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the director or officer is proper in the circumstances because the person has
met the applicable standard of conduct set forth in Section 5.01. Any
indemnification under Section 5.02 (unless ordered by a court) shall be made by
the Corporation upon a determination that such indemnification is appropriate
and authorized by Delaware law. Such determination shall be made (1) by a
majority vote of the disinterested directors, even though less than a quorum,
(2) by independent legal counsel in a written opinion, or (3) by the
stockholders. Notwithstanding the foregoing, a director or officer of the
Corporation shall be entitled to contest any determination that the director or
officer has not met the applicable standard of conduct set forth in Section 5.01
by petitioning a court of competent jurisdiction.
Section 5.05. Selection of Independent Counsel. If the determination of
entitlement to indemnification is to be made by independent counsel pursuant to
Section 5.04 hereof, the independent counsel shall be selected as provided in
this Section 5.05. The independent counsel shall be selected jointly by such
director or officer and the Corporation. In the event such director or officer
and the Corporation cannot agree on a selection for the independent counsel,
either party may petition the Delaware Court of Chancery or other court of
competent jurisdiction to resolve the issue or to make its own provisions for
the selection of independent counsel. The Corporation shall pay any and all
reasonable fees and expenses of independent counsel incurred by such independent
counsel in connection with acting pursuant to Section 5.04 hereof, and the
Corporation shall pay all reasonable fees and expenses incident to the
procedures of this Section 5.05, regardless of the manner in which such
independent counsel was selected or appointed.
Section 5.06. Payment of Expenses in Advance. Expenses incurred in
defending a civil or criminal action, suit or proceeding, by an individual who
is determined to be entitled to indemnification pursuant to Section 5.01, shall
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that the individual is not entitled to be indemnified by the Corporation as
authorized in this Article 5; provided, however, that the Corporation shall not
be required to advance expenses to any director or officer in connection with
any proceeding (or part thereof) initiated by such person unless the proceeding
was authorized in advance by the board of directors of the Corporation; and
provided further that no advance shall be made by the Corporation to a director
or officer of the Corporation in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, if a determination is reasonably and
promptly made (i) by a majority vote of disinterested directors or (ii) by
independent legal counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Corporation.
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Section 5.07. Indemnity Not Exclusive. The indemnification and
advancement of expenses provided by or granted pursuant to the other sections of
this Article 5 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
other provision of these bylaws, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in their official
capacity and as to action in another capacity while holding such office.
Section 5.08. Insurance Indemnification. 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, partnership, joint venture, trust or other enterprise,
against any expense, liability incurred by such person in any such capacity or
arising out of such person's status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under
Delaware Law.
Section 5.09. The Corporation. For purposes of this Article 5,
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 the power and authority to indemnify its
directors, officers, and employees or 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, partnership, joint venture,
trust or other enterprise, shall stand in the same position under and subject to
the provisions of this Article 5 (including, without limitation, the provisions
of Section 5.01 and Section 5.02) with respect to the resulting or surviving
corporation as the person would have with respect to such constituent
corporation if its separate existence had continued.
Section 5.10. Continuation of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 5 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 person.
Section 5.11. Amendments. Any repeal or modification of this Article 5
shall only be prospective and shall not affect the rights under this bylaw in
effect at the time of the alleged occurrence of any action or omission to act
that is the cause of any proceeding against any agent of the Corporation.
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ARTICLE 6
GENERAL PROVISIONS
Section 6.01. Fixing the Record Date. (a) 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, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than 60 nor less than 10 days before the
date of such meeting. If no record date is fixed by the Board of Directors, 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. 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 that the Board of Directors may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders 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 a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 6.02. Dividends. Subject to limitations contained in Delaware
Law and the certificate of incorporation, the Board of Directors may declare and
pay dividends upon the shares of capital stock of the Corporation, which
dividends may be paid either in cash, in property or in shares of the capital
stock of the Corporation.
Section 6.03. Fiscal Year. The fiscal year of the Corporation shall
commence on January 1 and end on December 31 of each year.
Section 6.04. Corporate Seal. The corporate seal shall have 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, affixed or otherwise reproduced.
Section 6.05. Voting of Stock Owned by the Corporation. The Board of
Directors may authorize any person, on behalf of the Corporation, to attend,
vote at and grant proxies to be used at any meeting of stockholders of any
corporation (except this Corporation) in which the Corporation may hold stock.
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Section 6.06. Amendments. These bylaws or any of them, may be altered,
amended or repealed, or new bylaws may be made, by the stockholders entitled to
vote thereon at any annual or special meeting thereof or by the Board of
Directors.
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