{"id":41500,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/bylaws-caldera-systems-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"bylaws-caldera-systems-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/bylaws-caldera-systems-inc.html","title":{"rendered":"Bylaws &#8211; Caldera Systems Inc."},"content":{"rendered":"<pre>\n                              AMENDED AND RESTATED\n                                     BYLAWS\n                                       OF\n                              CALDERA SYSTEMS, INC.\n\n\n                                    ARTICLE I\n\n                                     OFFICES\n\n\n            Section 1. The registered office shall be in the City of Wilmington,\nCounty of New Castle, State of Delaware.\n\n            Section 2. The corporation may also have offices at such other\nplaces both within and without the State of Delaware as the Board of Directors\nmay from time to time determine or the business of the corporation may require.\n\n                                   ARTICLE II\n\n                            MEETINGS OF STOCKHOLDERS\n\n            Section 1. All meetings of the stockholders for the election of\ndirectors shall be held at such place as may be fixed from time to time by the\nBoard of Directors, or at such other place either within or without the State of\nDelaware as shall be designated from time to time by the Board of Directors and\nstated in the notice of the meeting. Meetings of stockholders for any other\npurpose may be held at such time and place, within or without the State of\nDelaware, as shall be stated in the notice of the meeting or in a duly executed\nwaiver of notice thereof.\n\n            Section 2. Annual meetings of stockholders shall be held at such\ndate and time as shall be designated from time to time by the Board of Directors\nand stated in the notice of the meeting. At each annual meeting, the\nstockholders shall elect directors to succeed those directors whose terms expire\nin that year and shall transact such other business as may properly be brought\nbefore the meeting.\n\n            Section 3. Written notice of the annual meeting stating the place,\ndate and hour of the meeting shall be given to each stockholder entitled to vote\nat such meeting not less than ten (10) nor more than sixty (60) days before the\ndate of the meeting.\n\n            Section 4. The officer who has charge of the stock ledger of the\ncorporation shall prepare and make available, at least ten days before every\nmeeting of stockholders, a complete list of the stockholders entitled to vote at\nthe meeting, arranged in alphabetical order, and showing the address of each\nstockholder and the number of shares registered in the name of each stockholder.\nSuch list shall be open to the examination of any stockholder, for any purpose\ngermane to the meeting, during ordinary business hours, for a period of at least\nten days prior to the meeting, either at a place within the city where the\nmeeting is to be held, which place shall be specified in the notice of the\nmeeting, or, if not so specified, at the place where the meeting is to\n\n   2\n\nbe held. The list shall also be produced and kept at the time and place of the\nmeeting during the whole time thereof, and may be inspected by any stockholder\nwho is present.\n\n            Section 5. Special meetings of the stockholders, for any purpose or\npurposes, may only be called by the Chairman of the Board or a majority of the\nBoard.\n\n            Section 6. Written notice of a special meeting stating the place,\ndate and hour of the meeting and the purpose or purposes for which the meeting\nis called, shall be given not fewer than ten (10) nor more than sixty (60) days\nbefore the date of the meeting, to each stockholder entitled to vote at such\nmeeting.\n\n            Section 7. Business transacted at any special meeting of\nstockholders shall be limited to the purposes stated in the notice.\n\n            Section 8. The holders of a majority of the stock issued and\noutstanding and entitled to vote thereat, present in person or represented by\nproxy, shall constitute a quorum at all meetings of the stockholders for the\ntransaction of business except as otherwise provided by statute or by the\ncertificate of incorporation. If, however, such quorum shall not be present or\nrepresented at any meeting of the stockholders, either the Chairman of the\nBoard, or the stockholders entitled to vote thereat, present in person or\nrepresented by proxy, shall have power to adjourn the meeting from time to time,\nwithout notice other than announcement at the meeting, until a quorum shall be\npresent or represented. At such adjourned meeting at which a quorum shall be\npresent or represented any business may be transacted that might have been\ntransacted at the meeting as originally notified. If the adjournment is for more\nthan thirty (30) days, or if after the adjournment a new record date is fixed\nfor the adjourned meeting, a notice of the adjourned meeting shall be given to\neach stockholder of record entitled to vote at the meeting.\n\n            Section 9. When a quorum is present at any meeting, the vote of the\nholders of a majority of the stock having voting power present in person or\nrepresented by proxy shall decide any question brought before such meeting,\nunless the question is one upon which by express provision of applicable statute\nor of the certificate of incorporation, a different vote is required, in which\ncase such express provision shall govern and control the decision of such\nquestion.\n\n            Section 10. Unless otherwise provided in the certificate of\nincorporation each stockholder shall at every meeting of the stockholders be\nentitled to one vote in person or by proxy for each share of the capital stock\nhaving voting power held by such stockholder, but no proxy shall be voted on\nafter three (3) years from its date, unless the proxy provides for a longer\nperiod.\n\n            Section 11. Nominations for election to the Board of Directors must\nbe made by the Board of Directors or by a committee appointed by the Board of\nDirectors for such purpose or by any stockholder of any outstanding class of\ncapital stock of the corporation entitled to vote for the election of directors.\nNominations by stockholders must be preceded by notification in writing received\nby the secretary of the corporation not less than one-hundred twenty (120) days\nprior to any meeting of stockholders called for the election of directors. Such\nnotification shall contain the written consent of each proposed nominee to serve\nas a director if so elected and the\n\n                                       2\n   3\n\nfollowing information as to each proposed nominee and as to each person, acting\nalone or in conjunction with one or more other persons as a partnership, limited\npartnership, syndicate or other group, who participates or is expected to\nparticipate in making such nomination or in organizing, directing or financing\nsuch nomination or solicitation of proxies to vote for the nominee:\n\n                (a) the name, age, residence, address, and business address of\neach proposed nominee and of each such person;\n\n                (b) the principal occupation or employment, the name, type of\nbusiness and address of the corporation or other organization in which such\nemployment is carried on of each proposed nominee and of each such person;\n\n                (c) the amount of stock of the corporation owned beneficially,\neither directly or indirectly, by each proposed nominee and each such person;\nand\n\n                (d) a description of any arrangement or understanding of each\nproposed nominee and of each such person with each other or any other person\nregarding future employment or any future transaction to which the corporation\nwill or may be a party.\n\n            The presiding officer of the meeting shall have the authority to\ndetermine and declare to the meeting that a nomination not preceded by\nnotification made in accordance with the foregoing procedure shall be\ndisregarded.\n\n            Section 12. At any meeting of the stockholders, only such business\nshall be conducted as shall have been brought before the meeting (a) pursuant to\nthe corporation's notice of meeting, (b) by or at the direction of the Board of\nDirectors or (c) by any stockholder of the corporation who is a stockholder of\nrecord at the time of giving of the notice provided for in this Bylaw, who shall\nbe entitled to vote at such meeting and who complies with the notice procedures\nset forth in this Bylaw.\n\n            For business to be properly brought before any meeting by a\nstockholder pursuant to clause (c) above of this Section 12, the stockholder\nmust have given timely notice thereof in writing to the secretary of the\ncorporation. To be timely, a stockholder's notice must be delivered to or mailed\nand received at the principal executive offices of the corporation not less than\none hundred twenty (120) days prior to the date of the meeting. A stockholder's\nnotice to the secretary shall set forth as to each matter the stockholder\nproposes to bring before the meeting (a) a brief description of the business\ndesired to be brought before the meeting and the reasons for conducting such\nbusiness at the meeting, (b) the name and address, as they appear on the\ncorporation's books, of the stockholder proposing such business, and the name\nand address of the beneficial owner, if any, on whose behalf the proposal is\nmade, (c) the class and number of shares of the corporation which are owned\nbeneficially and of record by such stockholder of record and by the beneficial\nowner, if any, on whose behalf of the proposal is made and (d) any material\ninterest of such stockholder of record and the beneficial owner, if any, on\nwhose behalf the proposal is made in such business.\n\n\n                                       3\n   4\n\n            Notwithstanding anything in these Bylaws to the contrary, no\nbusiness shall be conducted at a meeting except in accordance with the\nprocedures set forth in this Section 12. The presiding officer of the meeting\nshall, if the facts warrant, determine and declare to the meeting that business\nwas not properly brought before the meeting and in accordance with the\nprocedures prescribed by this Section 12, and if such person should so\ndetermine, such person shall so declare to the meeting and any such business not\nproperly brought before the meeting shall not be transacted. Notwithstanding the\nforegoing provisions of this Section 12, a stockholder shall also comply with\nall applicable requirements of the Securities Exchange Act of 1934, as amended,\nand the rules and regulations thereunder with respect to the matters set forth\nin this Section 12.\n\n            Section 13. Effective upon the closing of the corporation's initial\npublic offering of securities pursuant to a registration statement filed under\nthe Securities Act of 1933, as amended, the stockholders of the Corporation may\nnot take action by written consent without a meeting but must take any such\nactions at a duly called annual or special meeting in accordance with these\nBylaws and the Certificate of Incorporation.\n\n\n                                   ARTICLE III\n\n                                    DIRECTORS\n\n            Section 1. The number of directors of this corporation that shall\nconstitute the whole board shall be determined by resolution of the Board of\nDirectors; provided, however, that no decrease in the number of directors shall\nhave the effect of shortening the term of an incumbent director.\n\n            Section 2. Vacancies and newly created directorships resulting from\nany increase in the authorized number of directors may be filled by a majority\nof the directors then in office, even if less than a quorum, or by a sole\nremaining director, and the directors so chosen shall hold office until the next\nelection of the class for which such directors were chosen and until their\nsuccessors are duly elected and qualified or until earlier resignation or\nremoval. If there are no directors in office, then an election of directors may\nbe held in the manner provided by statute.\n\n            Section 3. The business of the corporation shall be managed by or\nunder the direction of its Board of Directors which may exercise all such powers\nof the corporation and do all such lawful acts and things as are not by statute\nor by the certificate of incorporation or by these bylaws directed or required\nto be exercised or done by the stockholders.\n\n\n\n                                       4\n   5\n\n                       MEETINGS OF THE BOARD OF DIRECTORS\n\n            Section 4. The Board of Directors of the corporation may hold\nmeetings, both regular and special, either within or without the State of\nDelaware.\n\n            Section 5. The first meeting of each newly elected Board of\nDirectors shall be held at such time and place as shall be fixed by the vote of\nthe stockholders at the annual meeting and no notice of such meeting shall be\nnecessary to the newly elected directors in order legally to constitute the\nmeeting, provided a quorum shall be present. In the event of the failure of the\nstockholders to fix the time or place of such first meeting of the newly elected\nBoard of Directors, or in the event such meeting is not held at the time and\nplace so fixed by the stockholders, the meeting may be held at such time and\nplace as shall be specified in a notice given as hereinafter provided for\nspecial meetings of the Board of Directors, or as shall be specified in a\nwritten waiver signed by all of the directors.\n\n            Section 6. Regular meetings of the Board of Directors may be held\nwithout notice at such time and at such place as shall from time to time be\ndetermined by the board.\n\n            Section 7. Special meetings of the board may be called by the\nChairman of the Board or the president on twelve (12) hours' notice to each\ndirector by phone, fax or electronic mail; special meetings shall be called by\nthe Chairman of the Board, the president or secretary in like manner and on like\nnotice on the written request of a majority of the Board unless the Board\nconsists of only one director, in which case special meetings shall be called by\nthe Chairman of the Board, the president or secretary in like manner and on like\nnotice on the written request of the sole director.\n\n            Section 8. At all meetings of the board a majority of the directors\nshall constitute a quorum for the transaction of business and the act of a\nmajority of the directors present at any meeting at which there is a quorum\nshall be the act of the Board of Directors, except as may be otherwise\nspecifically provided by statute or by the certificate of incorporation. If a\nquorum shall not be present at any meeting of the Board of Directors, the\ndirectors present thereat may adjourn the meeting from time to time, without\nnotice other than announcement at the meeting, until a quorum shall be present.\n\n            Section 9. Unless otherwise restricted by the certificate of\nincorporation or these bylaws, any action required or permitted to be taken at\nany meeting of the Board of Directors or of any committee thereof may be taken\nwithout a meeting, if all members of the board or committee, as the case may be,\nconsent thereto in writing, and the writing or writings are filed with the\nminutes of proceedings of the board or committee.\n\n            Section 10. Unless otherwise restricted by the certificate of\nincorporation or these bylaws, members of the Board of Directors, or any\ncommittee designated by the Board of Directors, may participate in a meeting of\nthe Board of Directors, or any committee, by means of conference telephone or\nsimilar communications equipment by means of which all persons participating in\nthe meeting can hear each other, and such participation in a meeting shall\nconstitute presence in person at the meeting.\n\n\n                                       5\n   6\n\n                             COMMITTEES OF DIRECTORS\n\n            Section 11. The Board of Directors may, by resolution passed by a\nmajority of the whole board, designate one (1) or more committees, each\ncommittee to consist of one (1) or more of the directors of the corporation. The\nboard may designate one (1) or more directors as alternate members of any\ncommittee, who may replace any absent or disqualified member at any meeting of\nthe committee.\n\n            In the absence of disqualification of a member of a committee, the\nmember or members thereof present at any meeting and not disqualified from\nvoting, whether or not he or they constitute a quorum, may unanimously appoint\nanother member of the Board of Directors to act at the meeting in the place of\nany such absent or disqualified member.\n\n            Any such committee, to the extent provided in the resolution of the\nBoard of Directors, shall have and may exercise all the powers and authority of\nthe Board of Directors in the management of the business and affairs of the\ncorporation, and may authorize the seal of the corporation to be affixed to all\npapers that may require it; but no such committee shall have the power or\nauthority in reference to amending the certificate of incorporation, adopting an\nagreement of merger or consolidation, recommending to the stockholders the sale,\nlease or exchange of all or substantially all of the corporation's property and\nassets, recommending to the stockholders a dissolution of the corporation or a\nrevocation of a dissolution, or amending the bylaws of the corporation; and,\nunless the resolution or the certificate of incorporation expressly so provide,\nno such committee shall have the power or authority to declare a dividend or to\nauthorize the issuance of stock. Such committee or committees shall have such\nname or names as may be determined from time to time by resolution adopted by\nthe Board of Directors.\n\n            Section 12. Each committee shall keep regular minutes of its\nmeetings and report the same to the Board of Directors when required.\n\n                            COMPENSATION OF DIRECTORS\n\n            Section 13. Unless otherwise restricted by the certificate of\nincorporation or these bylaws, the Board of Directors shall have the authority\nto fix the compensation of directors. The directors may be paid their expenses,\nif any, of attendance at each meeting of the Board of Directors and may be paid\na fixed sum for attendance at each meeting of the Board of Directors or a stated\nsalary as director. No such payment shall preclude any director from serving the\ncorporation in any other capacity and receiving compensation therefor. Members\nof special or standing committees may be allowed like compensation for attending\ncommittee meetings.\n\n\n                                   ARTICLE IV\n\n                                     NOTICES\n\n            Section 1. Whenever, under the provisions of the statutes or of the\ncertificate of incorporation or of these bylaws, notice is required to be given\nto any director or stockholder, it shall not be construed to mean personal\nnotice (except as provided in Section 7 of Article III of\n\n                                       6\n   7\n\nthese Bylaws), but such notice may be given in writing, by mail, addressed to\nsuch director or stockholder, at his address as it appears on the records of the\ncorporation, with postage thereon prepaid, and such notice shall be deemed to be\ngiven at the time when the same shall be deposited in the United States mail.\nNotice to directors may also be given by telephone, telegram or facsimile.\n\n            Section 2. Whenever any notice is required to be given under the\nprovisions of the statutes or of the certificate of incorporation or of these\nbylaws, a waiver thereof in writing, signed by the person or persons entitled to\nsaid notice, whether before or after the time stated therein, shall be deemed\nequivalent thereto.\n\n\n                                    ARTICLE V\n\n                                    OFFICERS\n\n\n            Section 1. The officers of the corporation shall be chosen by the\nBoard of Directors and shall be a president, a chief financial officer and a\nsecretary. The Board of Directors may elect from among its members a Chairman of\nthe Board. The Board of Directors may also choose one or more vice-presidents,\nassistant secretaries and assistant treasurers. Any number of offices may be\nheld by the same person, unless the certificate of incorporation or these bylaws\notherwise provide.\n\n            Section 2. The Board of Directors at its first meeting after each\nannual meeting of stockholders shall choose a president, a chief financial\nofficer, and a secretary and may choose vice presidents.\n\n            Section 3. The Board of Directors may appoint such other officers\nand agents as it shall deem necessary who shall hold their offices for such\nterms and shall exercise such powers and perform such duties as shall be\ndetermined from time to time by the board.\n\n            Section 4. The salaries of all officers of the corporation shall be\nfixed by the Board of Directors or any committee established by the Board of\nDirectors for such purpose. The salaries of agents of the corporation shall,\nunless fixed by the Board of Directors, be fixed by the president or any\nvice-president of the corporation.\n\n            Section 5. The officers of the corporation shall hold office until\ntheir successors are chosen and qualify. Any officer elected or appointed by the\nBoard of Directors may be removed at any time by the affirmative vote of a\nmajority of the Board of Directors. Any vacancy occurring in any office of the\ncorporation shall be filled by the Board of Directors.\n\n\n                            THE CHAIRMAN OF THE BOARD\n\n            Section 6. The Chairman of the Board, if any, shall preside at all\nmeetings of the Board of Directors and of the stockholders at which he\/she shall\nbe present. He\/she shall have and may exercise such powers as are, from time to\ntime, assigned to him\/her by the Board and as may be provided by law.\n\n                                       7\n   8\n\n            Section 7. In the absence of the Chairman of the Board, the\npresident, shall preside at all meetings of the Board of Directors and of the\nstockholders at which he shall be present. He shall have and may exercise such\npowers as are, from time to time, assigned to him by the Board and as may be\nprovided by law.\n\n\n                        THE PRESIDENT AND VICE-PRESIDENTS\n\n            Section 8. The president shall be the chief executive officer of the\ncorporation and in the absence of the Chairman of the Board, he\/she shall\npreside at all meetings of the stockholders and the Board of Directors; he\/she\nshall have general and active management of the business of the corporation and\nshall see that all orders and resolutions of the Board of Directors are carried\ninto effect.\n\n            Section 9. The president or any vice president shall execute bonds,\nmortgages and other contracts requiring a seal, under the seal of the\ncorporation, except where required or permitted by law to be otherwise signed\nand executed and except where the signing and execution thereof shall be\nexpressly delegated by the Board of Directors to some other officer or agent of\nthe corporation.\n\n            Section 10. In the absence of the president or in the event of his\ninability or refusal to act, the vice-president, if any, (or in the event there\nbe more than one vice-president, the vice-presidents in the order designated by\nthe directors, or in the absence of any designation, then in the order of their\nelection) shall perform the duties of the president, and when so acting, shall\nhave all the powers of and be subject to all the restrictions upon the\npresident. The vice-presidents shall perform such other duties and have such\nother powers as the Board of Directors may from time to time prescribe.\n\n\n                      THE SECRETARY AND ASSISTANT SECRETARY\n\n            Section 11. The secretary shall attend all meetings of the Board of\nDirectors and all meetings of the stockholders and record all the proceedings of\nthe meetings of the corporation and of the Board of Directors in a book to be\nkept for that purpose and shall perform like duties for the standing committees\nwhen required. He\/she shall give, or cause to be given, notice of all meetings\nof the stockholders and special meetings of the Board of Directors, and shall\nperform such other duties as may be prescribed by the Board of Directors or\npresident, under whose supervision he\/she shall be. He\/she shall have custody of\nthe corporate seal of the corporation and he\/she, or an assistant secretary,\nshall have authority to affix the same to any instrument requiring it and when\nso affixed, it may be attested by his signature or by the signature of such\nassistant secretary. The Board of Directors may give general authority to any\nother officer to affix the seal of the corporation and to attest the affixing by\nhis signature.\n\n            Section 12. The assistant secretary, or if there be more than one,\nthe assistant secretaries in the order determined by the Board of Directors (or\nif there be no such determination, then in the order of their election) shall,\nin the absence of the secretary or in the event of his inability or refusal to\nact, perform the duties and exercise the powers of the secretary\n\n                                       8\n   9\n\nand shall perform such other duties and have such other powers as the board of\ndirectors may from time to time prescribe.\n\n\n                           THE CHIEF FINANCIAL OFFICER\n\n            Section 13. The chief financial officer shall be the chief financial\nofficer of the corporation, shall have the custody of the corporate funds and\nsecurities and shall keep full and accurate accounts of receipts and\ndisbursements in books belonging to the corporation and shall deposit all moneys\nand other valuable effects in the name and to the credit of the corporation in\nsuch depositories as may be designated by the Board of Directors.\n\n            Section 14. He\/she shall disburse the funds of the corporation as\nmay be ordered by the Board of Directors, taking proper vouchers for such\ndisbursements, and shall render to the president and the Board of Directors, at\nits regular meetings, or when the Board of Directors so requires, an account of\nall his transactions as Chief Financial Officer and of the financial condition\nof the corporation.\n\n            Section 15. If required by the Board of Directors, he\/she shall give\nthe corporation a bond (which shall be renewed every six years) in such sum and\nwith such surety or sureties as shall be satisfactory to the Board of Directors\nfor the faithful performance of the duties of his\/her office and for the\nrestoration to the corporation, in case of his\/her death, resignation,\nretirement or removal from office, of all books, papers, vouchers, money and\nother property of whatever kind in his possession or under his\/her control\nbelonging to the corporation.\n\n            Section 16. The treasurer or an assistant treasurer, in the order\ndetermined by the Board of Directors (or if there be no such determination, then\nin the order of their election) shall, in the absence of the Chief Financial\nOfficer or in the event of his inability or refusal to act, perform the duties\nand exercise the powers of the Chief Financial Officer and shall perform such\nother duties and have such other powers as the Board of Directors may from time\nto time prescribe.\n\n\n                                   ARTICLE VI\n\n                              CERTIFICATE OF STOCK\n\n\n            Section 1. Every holder of stock in the corporation shall be\nentitled to have a certificate, signed by, or in the name of the corporation by,\nthe Chairman of the Board of Directors, or the president or a vice-president and\nthe treasurer or an assistant treasurer, or the secretary or an assistant\nsecretary of the corporation, certifying the number of shares owned by him\/her\nin the corporation.\n\n            Certificates may be issued for partly paid shares and in such case\nupon the face or back of the certificates issued to represent any such partly\npaid shares, the total amount of the consideration to be paid therefor, and the\namount paid thereon shall be specified.\n\n            If the corporation shall be authorized to issue more than one class\nof stock or more than one series of any class, the powers, designations,\npreferences and relative,\n\n                                       9\n   10\n\nparticipating, optional or other special rights of each class of stock or series\nthereof and the qualification, limitations or restrictions of such preferences\nand\/or rights shall be set forth in full or summarized on the face or back of\nthe certificate that the corporation shall issue to represent such class or\nseries of stock, provided that, except as otherwise provided in section 202 of\nthe General Corporation Law of Delaware, in lieu of the foregoing requirements,\nthere may be set forth on the face or back of the certificate that the\ncorporation shall issue to represent such class or series of stock, a statement\nthat the corporation will furnish without charge to each stockholder who so\nrequests the powers, designations, preferences and relative, participating,\noptional or other special rights of each class of stock or series thereof and\nthe qualifications, limitations or restrictions of such preferences and\/or\nrights.\n\n            Any of or all the signatures on the certificate may be facsimile. In\ncase any officer, transfer agent or registrar who has signed or whose facsimile\nsignature has been placed upon a certificate shall have ceased to be such\nofficer, transfer agent or registrar before such certificate is issued, it may\nbe issued by the corporation with the same effect as if he\/she were such\nofficer, transfer agent or registrar at the date of issue.\n\n\n                                LOST CERTIFICATES\n\n            Section 2. The Board of Directors may direct a new certificate or\ncertificates to be issued in place of any certificate or certificates\ntheretofore issued by the corporation alleged to have been lost, stolen or\ndestroyed, upon the making of an affidavit of that fact by the person claiming\nthe certificate of stock to be lost, stolen or destroyed. When authorizing such\nissue of a new certificate or certificates, the Board of Directors may, in its\ndiscretion and as a condition precedent to the issuance thereof, require the\nowner of such lost, stolen or destroyed certificate or certificates, or his\/her\nlegal representative, to advertise the same in such manner as it shall require\nand\/or to give the corporation a bond in such sum as it may direct as indemnity\nagainst any claim that may be made against the corporation with respect to the\ncertificate alleged to have been lost, stolen or destroyed.\n\n                                TRANSFER OF STOCK\n\n            Section 3. Upon surrender to the corporation or the transfer agent\nof the corporation of a certificate for shares duly endorsed or accompanied by\nproper evidence of succession, assignation or authority to transfer, it shall be\nthe duty of the corporation to issue a new certificate to the person entitled\nthereto, cancel the old certificate and record the transaction upon its books.\n\n                               FIXING RECORD DATE\n\n            Section 4. In order that the corporation may determine the\nstockholders entitled to notice of or to vote at any meeting of stockholders or\nany adjournment thereof, or to express consent to corporate action in writing\nwithout a meeting, or entitled to receive payment of any dividend or other\ndistribution or allotment of any rights, or entitled to exercise any rights in\nrespect of any change, conversion or exchange of stock or for the purpose of any\nother lawful action, the Board of Directors may fix, in advance, a record date,\nwhich shall not be more than sixty (60) nor less than ten (10) days before the\ndate of such meeting, nor more than sixty (60)\n\n                                       10\n   11\n\n\ndays prior to any other action. A determination of stockholders of record\nentitled to notice of or to vote at a meeting of stockholders shall apply to any\nadjournment of the meeting; provided, however, that the Board of Directors may\nfix a new record date for the adjourned meeting.\n\n\n                             REGISTERED STOCKHOLDERS\n\n            Section 5. The corporation shall be entitled to recognize the\nexclusive right of a person registered on its books as the owner of shares to\nreceive dividends, and to vote as such owner, and to hold liable for calls and\nassessments a person registered on its books as the owner of shares and shall\nnot be bound to recognize any equitable or other claim to or interest in such\nshare or shares on the part of any other person, whether or not it shall have\nexpress or other notice thereof, except as otherwise provided by the laws of\nDelaware.\n\n                                   ARTICLE VII\n\n                               GENERAL PROVISIONS\n\n                                    DIVIDENDS\n\n            Section 1. Dividends upon the capital stock of the corporation,\nsubject to the provisions of the certificate of incorporation, if any, may be\ndeclared by the Board of Directors at any regular or special meeting, pursuant\nto law. Dividends may be paid in cash, in property, or in shares of the capital\nstock, subject to the provisions of the certificate of incorporation.\n\n\n            Section 2. Before payment of any dividend, there may be set aside\nout of any funds of the corporation available for dividends such sum or sums as\nthe directors from time to time, in their absolute discretion, think proper as a\nreserve or reserves to meet contingencies, or for equalizing dividends, or for\nrepairing or maintaining any property of the corporation, or for such other\npurposes as the directors shall think conducive to the interest of the\ncorporation, and the directors may modify or abolish any such reserve in the\nmanner in which it was created.\n\n\n                                     CHECKS\n\n            Section 3. All checks or demands for money and notes of the\ncorporation shall be signed by such officer or officers or such other person or\npersons as the Board of Directors may from time to time designate.\n\n                                   FISCAL YEAR\n\n            Section 4. The fiscal year of the corporation shall be fixed by\nresolution of the Board of Directors.\n\n                                      SEAL\n\n            Section 5. The Board of Directors may adopt a corporate seal having\ninscribed thereon the name of the corporation, the year of its organization and\nthe words 'Corporate Seal, Delaware.' The seal may be used by causing it or a\nfacsimile thereof to be impressed or affixed or reproduced or otherwise.\n\n                                       11\n   12\n\n                                 INDEMNIFICATION\n\n            Section 6. The corporation shall, to the fullest extent authorized\nunder the laws of the State of Delaware, as those laws may be amended and\nsupplemented from time to time, indemnify any director made, or threatened to be\nmade, a party to an action or proceeding, whether criminal, civil,\nadministrative or investigative, by reason of being a director of the\ncorporation or a predecessor corporation or, at the corporation's request, a\ndirector or officer of another corporation, provided, however, that the\ncorporation shall indemnify any such agent in connection with a proceeding\ninitiated by such agent only if such proceeding was authorized by the Board of\nDirectors of the corporation. The indemnification provided for in this Section 6\nshall: (i) not be deemed exclusive of any other rights to which those\nindemnified may be entitled under any bylaw, agreement or vote of stockholders\nor disinterested directors or otherwise, both as to action in their official\ncapacities and as to action in another capacity while holding such office, (ii)\ncontinue as to a person who has ceased to be a director, and (iii) inure to the\nbenefit of the heirs, executors and administrators of such a person. The\ncorporation's obligation to provide indemnification under this Section 6 shall\nbe offset to the extent of any other source of indemnification or any otherwise\napplicable insurance coverage under a policy maintained by the corporation or\nany other person.\n\n            Expenses incurred by a director of the corporation in defending a\ncivil or criminal action, suit or proceeding by reason of the fact that he is or\nwas a director of the corporation (or was serving at the corporation's request\nas a director or officer of another corporation) shall be paid by the\ncorporation in advance of the final disposition of such action, suit or\nproceeding upon receipt of an undertaking by or on behalf of such director to\nrepay such amount if it shall ultimately be determined that he is not entitled\nto be indemnified by the corporation as authorized by relevant sections of the\nGeneral Corporation Law of Delaware. Notwithstanding the foregoing, the\ncorporation shall not be required to advance such expenses to an agent who is a\nparty to an action, suit or proceeding brought by the corporation and approved\nby a majority of the Board of Directors of the corporation which alleges willful\nmisappropriation of corporate assets by such agent, disclosure of confidential\ninformation in violation of such agent's fiduciary or contractual obligations to\nthe corporation or any other willful and deliberate breach in bad faith of such\nagent's duty to the corporation or its stockholders.\n\n            The foregoing provisions of this Section 6 shall be deemed to be a\ncontract between the corporation and each director who serves in such capacity\nat any time while this bylaw is in effect, and any repeal or modification\nthereof shall not affect any rights or obligations then existing with respect to\nany state of facts then or theretofore existing or any action, suit or\nproceeding theretofore or thereafter brought based in whole or in part upon any\nsuch state of facts.\n\n            The Board of Directors in its discretion shall have power on behalf\nof the corporation to indemnify any person, other than a director, made a party\nto any action, suit or proceeding by reason of the fact that he, his testator or\nintestate, is or was an officer or employee of the corporation.\n\n            To assure indemnification under this Section 6 of all directors,\nofficers and employees who are determined by the corporation or otherwise to be\nor to have been\n\n                                       12\n   13\n\n'fiduciaries' of any employee benefit plan of the corporation which may exist\nfrom time to time, Section 145 of the General Corporation Law of Delaware shall,\nfor the purposes of this Section 6, be interpreted as follows: an 'other\nenterprise' shall be deemed to include such an employee benefit plan, including\nwithout limitation, any plan of the corporation which is governed by the Act of\nCongress entitled 'Employee Retirement Income Security Act of 1974,' as amended\nfrom time to time; the corporation shall be deemed to have requested a person to\nserve an employee benefit plan where the performance by such person of his\nduties to the corporation also imposes duties on, or otherwise involves services\nby, such person to the plan or participants or beneficiaries of the plan; excise\ntaxes assessed on a person with respect to an employee benefit plan pursuant to\nsuch Act of Congress shall be deemed 'fines.'\n\n\n                                  ARTICLE VIII\n\n                                   AMENDMENTS\n\n\n            Section 1. These bylaws may be altered, amended or repealed or new\nbylaws may be adopted by the affirmative vote of holders of at least 66-2\/3%\nvote of the outstanding voting stock of the corporation. These bylaws may also\nbe altered, amended or repealed or new bylaws may be adopted by the Board of\nDirectors, when such power is conferred upon the Board of Directors by the\ncertificate of incorporation. The foregoing may occur at any regular meeting of\nthe stockholders or of the Board of Directors or at any special meeting of the\nstockholders or of the Board of Directors if notice of such alteration,\namendment, repeal or adoption of new bylaws be contained in the notice of such\nspecial meeting. If the power to adopt, amend or repeal bylaws is conferred upon\nthe Board of Directors by the certificate of incorporation it shall not divest\nor limit the power of the stockholders to adopt, amend or repeal bylaws.\n\n\n                                       13\n   14\n\n                         CERTIFICATE OF ADOPTION BY THE\n                                  SECRETARY OF\n                              CALDERA SYSTEMS, INC.\n\n\n            The undersigned, Alan Hansen, hereby certifies that he is the duly\nelected and acting Secretary of Caldera Systems, Inc., a Delaware corporation\n(the 'Corporation'), and that the Bylaws attached hereto constitute the Bylaws\nof said Corporation as duly adopted by the Board of Directors on\n_________________, 2000.\n\n\n            IN WITNESS WHEREOF, the undersigned has hereunto subscribed his name\nas of the _______ day of __________________, 2000.\n\n\n\n                                       -----------------------------------------\n                                       Alan Hansen\n                                       Secretary\n\n\n\n                                       14\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6993],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9573,9574],"class_list":["post-41500","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-caldera-systems-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-formation","corporate_contracts_types-formation__bylaws"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41500","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41500"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41500"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41500"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41500"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}