\nARTICLE IX AMENDMENTS…………………………………………………………… 21
\n<\/c><\/s><\/caption>\n<\/table>\n -iii-<\/p>\n
AMENDED AND RESTATED BYLAWS
\n —————————-<\/p>\n
OF
\n —<\/p>\n
LYNUXWORKS, INCORPORATED
\n ————————<\/p>\n
ARTICLE I<\/p>\n
CORPORATE OFFICES
\n —————–<\/p>\n
1.1 Registered Office. The registered office of the corporation shall be
\n —————–
\nfixed in the Certificate of Incorporation of the corporation.<\/p>\n
1.2 Other Offices. The board of directors may at any time establish branch
\n ————-
\nor subordinate offices at any place or places where the corporation is qualified
\nto do business.<\/p>\n
ARTICLE II<\/p>\n
MEETINGS OF STOCKHOLDERS
\n ————————<\/p>\n
2.1 Place of Meetings. Meetings of stockholders shall be held at any place
\n —————–
\nwithin or outside the State of Delaware designated by the board of directors. In
\nthe absence of any such designation, stockholders’ meetings shall be held at the
\nregistered office of the corporation.<\/p>\n
2.2 Annual Meeting.
\n ————–<\/p>\n
(a) The annual meeting of stockholders shall be held each year on a
\ndate and at a time designated by the board of directors. At the meeting,
\ndirectors shall be elected, and any other proper business may be transacted.<\/p>\n
(b) At an annual meeting of the stockholders, only such business
\nshall be conducted as shall have been properly brought before the meeting. To be
\nproperly brought before an annual meeting, business must be: (A) specified in
\nthe notice of meeting (or any supplement thereto) given by or at the direction
\nof the board of directors, (B) otherwise properly brought before the meeting by
\nor at the direction of the board of directors, or (C) otherwise properly brought
\nbefore the meeting by a stockholder. For nominations or other business to be
\nproperly brought before a stockholders meeting by a stockholder pursuant to
\nclause (C) of the preceding sentence, the stockholder must have given timely
\nnotice thereof in writing to the Secretary of the corporation and such other
\nbusiness must otherwise be a proper matter for stockholder action. To be timely,
\na stockholder’s notice shall be delivered to the Secretary at the principal
\nexecutive offices of the <\/p>\n
corporation not less than one hundred twenty (120) calendar days in advance of
\nthe first anniversary of the preceding year’s annual meeting; provided, however,
\nthat in the event that (i) no annual meeting was held in the previous year or
\n(ii) the date of the annual meeting has been changed by more than thirty (30)
\ndays from the date of the previous year’s meeting, notice by the stockholder to
\nbe timely must be so delivered not earlier than the close of business on the
\nlater of: (i) the day one hundred twenty (120) calendar days in advance of such
\nmeeting or (ii) the day ten (10) calendar days following the day on which public
\nannouncement of the date of the meeting is first made. For purposes of
\ndetermining whether a stockholder’s notice shall have been delivered in a timely
\nmanner for the first annual meeting of stockholders following fiscal year 2001,
\nthe first anniversary of the previous year’s meeting shall be deemed to be
\nSeptember 30, 2001. In no event shall the public announcement of an adjournment
\nof a stockholders meeting commence a new time period for the giving of a
\nstockholder’s notice as described above. A stockholder’s notice to the secretary
\nshall set forth as to each matter the stockholder proposes to bring before the
\nannual meeting: (a) a brief description of the business desired to be brought
\nbefore the meeting, (b) the name and address, as they appear on the
\ncorporation’s books, of the stockholder proposing such business, (c) the class
\nand number of shares of the corporation which are owned beneficially by such
\nstockholder, (d) any material interest of the stockholder in such business, and
\n(e) any other information that is required to be provided by the stockholder
\npursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
\n(the “1934 Act”) (or any successor thereto) in such stockholder’s capacity as a
\nproponent of a stockholder proposal. Notwithstanding anything in these Bylaws to
\nthe contrary, no business shall be conducted at any annual meeting except in
\naccordance with the procedures set forth in this paragraph (b). The chairman of
\nthe annual meeting shall, if the facts warrant, determine and declare at the
\nmeeting that business was not properly brought before the meeting and in
\naccordance with the provisions of this paragraph (b), and, if he should so
\ndetermine, he shall so declare at the meeting that any such business not
\nproperly brought before the meeting shall not be transacted.<\/p>\n
(c) Only persons who are nominated in accordance with the procedures
\nset forth in this paragraph (c) shall be eligible for election as directors.
\nNominations of persons for election to the board of directors of the corporation
\nmay be made at a meeting of stockholders by or at the direction of the board of
\ndirectors or by any stockholder of the corporation entitled to vote in the
\nelection of directors at the meeting who complies with the notice procedures set
\nforth in this paragraph (c). Such nominations, other than those made by or at
\nthe direction of the board of directors, shall be made pursuant to timely notice
\nin writing to the secretary of the corporation in accordance with the provisions
\nof paragraph (b) of this Section 2.2. Such stockholder’s notice shall set forth
\n(i) as to each person, if any, whom the stockholder proposes to nominate for
\nelection or re-election as a director: (A) the name, age, business address and
\nresidence address of such person, (B) the principal occupation or employment of
\nsuch person, (C) the class and number of shares of the corporation which are
\nbeneficially owned by such person, (D) a description of all arrangements or
\nunderstandings between the stockholder and each nominee and any other person or
\npersons (naming such person or persons) pursuant to which the nominations are to
\nbe made by the stockholder, and (E) any other information relating to such
\nperson that is required to be disclosed in solicitations of proxies for
\nelections of directors, or is otherwise required, in each case pursuant to
\nRegulation 14A under the 1934 Act (or any successor thereto) (including without
\nlimitation such person’s written consent to being named in the proxy statement,
\nif any, as a nominee and to serving <\/p>\n
-2-<\/p>\n
as a director if elected); and (ii) as to such stockholder giving notice, the
\ninformation required to be provided pursuant to paragraph (b) of this Section
\n2.2. At the request of the board of directors, any person nominated by a
\nstockholder for election as a director shall furnish to the secretary of the
\ncorporation that information required to be set forth in the stockholder’s
\nnotice of nomination which pertains to the nominee. No person shall be eligible
\nfor election as a director of the corporation unless nominated in accordance
\nwith the procedures set forth in this paragraph (c). The chairman of the meeting
\nshall, if the facts warrant, determine and declare at the meeting that a
\nnomination was not made in accordance with the procedures prescribed by these
\nBylaws, and if he should so determine, he shall so declare at the meeting, and
\nthe defective nomination shall be disregarded.<\/p>\n
2.3 Special Meeting. A special meeting of the stockholders may be called
\n —————
\nat any time by the board of directors or the chairman of the board. Special
\nmeetings of the stockholders may not be called by any other person or persons.
\nOnly such business shall be considered at a special meeting of stockholders as
\nshall have been stated in the notice for such meeting.<\/p>\n
2.4 Organization. Meetings of stockholders shall be presided over by the
\n ————
\nchairman of the board, if any, or in his or her absence by the vice chairman of
\nthe board, if any, or in his or her absence, or in the absence of the foregoing
\npersons by a chairman of the meeting, which chairman must be an officer or
\ndirector of the Company, designated by the board of directors. The secretary or
\nin his or her absence an assistant secretary or in the absence of the secretary
\nand all assistant secretaries a person whom the chairman of the meeting shall
\nappoint shall act as secretary of the meeting and keep a record of the
\nproceedings thereof.<\/p>\n
The board of directors of the corporation shall be entitled to make such
\nrules or regulations for the conduct of meetings of stockholders as it shall
\ndeem necessary, appropriate or convenient. Subject to such rules and regulations
\nof the board of directors, if any, the chairman of the meeting shall have the
\nright and authority to prescribe such rules, regulations and procedures and to
\ndo all such acts as, in the judgment of such chairman, are necessary,
\nappropriate or convenient for the proper conduct of the meeting, including,
\nwithout limitation, establishing an agenda or order of business for the meeting,
\nrules and procedures for maintaining order at the meeting and the safety of
\nthose present, limitations on participation in such meeting to stockholders of
\nrecord of the corporation and their duly authorized and constituted proxies, and
\nsuch other persons as the chairman shall permit, restrictions on entry to the
\nmeeting after the time fixed for the commencement thereof, limitations on the
\ntime allotted to questions or comments by participants and regulation of the
\nopening and closing of the polls for balloting and matters which are to be voted
\non by ballot. Unless and to the extent determined by the board of directors or
\nthe chairman of the meeting, meetings of stockholders shall not be required to
\nbe held in accordance with rules of parliamentary procedure.<\/p>\n
2.5 Notice of Stockholders’ Meetings. All notices of meetings of
\n ——————————–
\nstockholders shall be sent or otherwise given in accordance with Section 2.6 of
\nthese Bylaws not less than ten (10) nor more than sixty (60) days before the
\ndate of the meeting. The notice shall specify the place, date, and hour of the
\nmeeting and (i) in the case of a special meeting, the purpose or purposes for
\nwhich the meeting is called (no business other than that specified in the notice
\nmay be transacted) or (ii) in<\/p>\n
-3-<\/p>\n
the case of the annual meeting, those matters which the board of directors, at
\nthe time of giving the notice, intends to present for action by the stockholders
\n(but any proper matter may be presented at the meeting for such action). The
\nnotice of any meeting at which directors are to be elected shall include the
\nname of any nominee or nominees who, at the time of the notice, the board
\nintends to present for election.<\/p>\n
2.6 Manner of Giving Notice; Affidavit of Notice. Notice of any meeting of
\n ——————————————–
\nstockholders shall be given either personally or by mail, telecopy, telegram or
\nother electronic or wireless means. Notices not personally delivered shall be
\nsent charges prepaid and shall be addressed to the stockholder at the address of
\nthat stockholder appearing on the books of the corporation or given by the
\nstockholder to the corporation for the purpose of notice. Notice shall be deemed
\nto have been given at the time when delivered personally or deposited in the
\nmail or at the time of transmission when sent by telecopy, telegram or other
\nelectronic or wireless means.<\/p>\n
An affidavit of the mailing or other means of giving any notice of any
\nstockholders’ meeting, executed by the secretary, assistant secretary or any
\ntransfer agent of the corporation giving the notice, shall be prima facie
\nevidence of the giving of such notice or report.<\/p>\n
2.7 Quorum. The holders of a majority in voting power of the stock issued
\n ——
\nand outstanding and entitled to vote thereat, present in person or represented
\nby proxy, 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 is not present or
\nrepresented at any meeting of the stockholders, then either (i) the chairman of
\nthe meeting or (ii) the stockholders by the vote of the holders of a majority of
\nthe stock, present in person or represented by proxy shall have power to adjourn
\nthe meeting in accordance with Section 2.8 of these Bylaws.<\/p>\n
When a quorum is present at any meeting, the vote of the holders of a
\nmajority of the stock having voting power present in person or represented by
\nproxy shall decide any question brought before such meeting, unless the question
\nis one upon which, by express provision of the laws of the State of Delaware or
\nof the Certificate of Incorporation or these Bylaws, a vote of a greater number
\nor voting by classes is required, in which case such express provision shall
\ngovern and control the decision of the question.<\/p>\n
If a quorum be initially present, the stockholders may continue to transact
\nbusiness until adjournment, notwithstanding the withdrawal of enough
\nstockholders to leave less than a quorum, if any action taken is approved by a
\nmajority of the stockholders initially constituting the quorum.<\/p>\n
2.8 Adjourned Meeting; Notice. Any stockholders’ meeting, annual or
\n ————————-
\nspecial, whether or not a quorum is present, may be adjourned from time to time
\nby the vote of the majority of the voting power of the shares represented at
\nthat meeting, either in person or by proxy. In the absence of a quorum, no other
\nbusiness may be transacted at that meeting except as provided in Section 2.7 of
\nthese Bylaws.<\/p>\n
When any meeting of stockholders, either annual or special, is adjourned to
\nanother time or place, notice need not be given of the adjourned meeting if the
\ntime and place are announced at the <\/p>\n
-4-<\/p>\n
meeting at which the adjournment is taken. However, if a new record date for the
\nadjourned meeting is fixed or if the adjournment is for more than thirty (30)
\ndays from the date set for the original meeting, then notice of the adjourned
\nmeeting shall be given. Notice of any such adjourned meeting shall be given to
\neach stockholder of record entitled to vote at the adjourned meeting in
\naccordance with the provisions of Sections 2.5 and 2.6 of these Bylaws. At any
\nadjourned meeting the corporation may transact any business which might have
\nbeen transacted at the original meeting.<\/p>\n
2.9 Voting. The stockholders entitled to vote at any meeting of
\n ——
\nstockholders shall be determined in accordance with the provisions of Section
\n2.12 of these Bylaws, subject to the provisions of Sections 217 and 218 of the
\nGeneral Corporation Law of Delaware (relating to voting rights of fiduciaries,
\npledgers and joint owners, and to voting trusts and other voting agreements).<\/p>\n
Except as may be otherwise provided in the Certificate of Incorporation, by
\nthese Bylaws or required by law, each stockholder shall be entitled to one vote
\nfor each share of capital stock held by such stockholder.<\/p>\n
Any stockholder entitled to vote on any matter may vote part of the shares
\nin favor of the proposal and refrain from voting the remaining shares or, except
\nwhen the matter is the election of directors, may vote them against the
\nproposal; but if the stockholder fails to specify the number of shares which the
\nstockholder is voting affirmatively, it will be conclusively presumed that the
\nstockholder’s approving vote is with respect to all shares which the stockholder
\nis entitled to vote.<\/p>\n
2.10 Validation of Meetings; Waiver of Notice; Consent. The transactions
\n ————————————————-
\nof any meeting of stockholders, either annual or special, however called and
\nnoticed, and wherever held, shall be as valid as though they had been taken at a
\nmeeting duly held after regular call and notice, if a quorum be present either
\nin person or by proxy.<\/p>\n
Whenever notice is required to be given under any provision of the General
\nCorporation Law of Delaware or of the Certificate of Incorporation or these
\nBylaws, a written waiver thereto, signed by the person entitled to notice,
\nwhether before or after the time stated therein, will be deemed equivalent to
\nnotice. Attendance by a person at a meeting shall also constitute a waiver of
\nnotice of and presence at that meeting, except when the person objects at the
\nbeginning of the meeting to the transaction of any business because the meeting
\nis not lawfully called or convened. Attendance at a meeting is not a waiver of
\nany right to object to the consideration of matters required by law to be
\nincluded in the notice of the meeting but not so included, if that objection is
\nexpressly made at the meeting. Neither the business to be transacted at, nor
\nthe purpose of, any regular or special meeting of the stockholders need be
\nspecified in any written waiver of notice unless so required by the Certificate
\nof Incorporation or these Bylaws.<\/p>\n
2.11 No Stockholder Action by Written Consent. Any action required or
\n —————————————-
\npermitted to be taken by the stockholders of the corporation must be effected at
\na duly called annual or special meeting of such holders and may not be effected
\nby any consent in writing by such holders.<\/p>\n
2.12 Record Date for Stockholder Notice; Voting; Giving Consents. For
\n ———————————————————–
\npurposes of determining the stockholders entitled to notice of any meeting or to
\nvote thereat, the board of<\/p>\n
-5-<\/p>\n
directors may fix, in advance, a record date, which shall not be more than sixty
\n(60) days nor less than ten (10) days before the date of any such meeting, and
\nin such event only stockholders of record on the date so fixed are entitled to
\nnotice and to vote, notwithstanding any transfer of any shares on the books of
\nthe corporation after the record date, except as otherwise provided in the
\nCertificate of Incorporation, by these Bylaws, by agreement or by applicable
\nlaw.<\/p>\n
If the board of directors does not so fix a record date, the record date
\nfor determining stockholders entitled to notice of or to vote at a meeting of
\nstockholders shall be at the close of business on the business day next
\npreceding the day on which notice is given, or, if notice is waived, at the
\nclose of business on the business day next preceding the day on which the
\nmeeting is held.<\/p>\n
A determination of stockholders of record entitled to notice of or to vote
\nat a meeting of stockholders shall apply to any adjournment of the meeting
\nunless the board of directors fixes a new record date for the adjourned meeting,
\nbut the board of directors shall fix a new record date if the meeting is
\nadjourned for more than thirty (30) days from the date set for the original
\nmeeting.<\/p>\n
The record date for any other purpose shall be as provided in Section 8.1
\nof these Bylaws.<\/p>\n
2.13 Proxies. Every person entitled to vote for directors, or on any other
\n ——-
\nmatter, shall have the right to do so either in person or by one or more agents
\nauthorized by a written proxy filed with the secretary of the corporation. A
\nwritten proxy may be in the form of a telegram, cablegram, or other means of
\nelectronic transmission which sets forth or is submitted with information from
\nwhich it can be determined that the telegram, cablegram, or other means of
\nelectronic transmission was authorized by the person. No such proxy shall be
\nvoted or acted upon after three (3) years from its date, unless the proxy
\nprovides for a longer period. A duly executed proxy shall be irrevocable if it
\nstates that it is irrevocable and if, and only as long as, it is coupled with an
\ninterest sufficient in law to support an irrevocable power. The revocability of
\na proxy that states on its face that it is irrevocable shall be governed by the
\nprovisions of Section 212(e) of the General Corporation Law of Delaware. A
\nstockholder may revoke any proxy which is not irrevocable by attending the
\nmeeting and voting in person or by filing an instrument in writing revoking the
\nproxy or by filing another duly executed proxy bearing a later date with the
\nsecretary of the corporation.<\/p>\n
A proxy is not revoked by the death or incapacity of the maker unless,
\nbefore the vote is counted, written notice of such death or incapacity is
\nreceived by the corporation.<\/p>\n
2.14 Inspectors of Election. Before any meeting of stockholders, the board
\n ———————-
\nof directors shall appoint an inspector or inspectors of election to act at the
\nmeeting or its adjournment. The number of inspectors shall be either one (1) or
\nthree (3). If any person appointed as inspector fails to appear or fails or
\nrefuses to act, then the chairman of the meeting may, and upon the request of
\nany stockholder or a stockholder’s proxy shall, appoint a person to fill that
\nvacancy.<\/p>\n
-6-<\/p>\n
Such inspectors shall:<\/p>\n
(a) determine the number of shares outstanding and the voting power
\nof each, the number of shares represented at the meeting, the existence of a
\nquorum, and the authenticity, validity, and effect of proxies;<\/p>\n
(b) receive votes, ballots or consents;<\/p>\n
(c) hear and determine all challenges and questions in any way
\narising in connection with the right to vote;<\/p>\n
(d) count and tabulate all votes or consents;<\/p>\n
(e) determine when the polls shall close;<\/p>\n
(f) determine the result; and<\/p>\n
(g) do any other acts that may be proper to conduct the election or
\nvote with fairness to all stockholders.<\/p>\n
The inspectors of election shall perform their duties impartially, in good
\nfaith, to the best of their ability and as expeditiously as is practical. If
\nthere are three (3) inspectors of election, the decision, act or certificate of
\na majority is effective in all respects as the decision, act or certificate of
\nall. Any report or certificate made by the inspectors of election is prima
\nfacie evidence of the facts stated therein.<\/p>\n
ARTICLE III<\/p>\n
DIRECTORS
\n ———<\/p>\n
3.1 Powers. Subject to the provisions of the General Corporation Law of
\n ——
\nDelaware and to any limitations in the Certificate of Incorporation or these
\nBylaws relating to action required to be approved by the stockholders or by the
\noutstanding shares, the business and affairs of the corporation shall be managed
\nand all corporate powers shall be exercised by or under the direction of the
\nboard of directors.<\/p>\n
3.2 Number. The authorized number of directors shall be fixed and may be
\n ——
\nchanged from time to time by resolution of the Board of Directors.<\/p>\n
No reduction of the authorized number of directors shall have the effect of
\nremoving any director before that director’s term of office expires. If for any
\ncause, the directors shall not have been elected at an annual meeting, they may
\nbe elected as soon thereafter as convenient at a special meeting of the
\nstockholders called for that purpose in the manner provided in these Bylaws.<\/p>\n
-7-<\/p>\n
3.3 Election and Term of Office of Directors. Except as provided in the
\n —————————————-
\nCertificate of Incorporation or Section 3.4 of these Bylaws, directors shall be
\nclassified, with respect to the time for which they severally hold office, into
\nthree classes, as nearly equal in number as possible, one class to be originally
\nelected for a term expiring at the first annual meeting of stockholders
\nfollowing fiscal year 2001, another class to be originally elected for a term
\nexpiring at the first annual meeting of stockholders following fiscal year 2002,
\nand another class to be originally elected for a term expiring at the first
\nannual meeting of stockholders following fiscal year 2003, with each class to
\nhold office until its successor is duly elected and qualified. At each
\nsucceeding annual meeting of stockholders, directors elected to succeed those
\ndirectors whose terms then expire shall be elected for a term of office to
\nexpire at the third succeeding annual meeting of stockholders after their
\nelection, with each director to hold office until such person’s successor shall
\nhave been elected and qualified or until such person’s earlier resignation or
\nremoval. Each director, including a director elected or appointed to fill a
\nvacancy, shall hold office until his successor is elected and qualified or until
\nhis earlier resignation or removal.<\/p>\n
Directors need not be stockholders unless so required by the Certificate of
\nIncorporation or by these Bylaws; wherein other qualifications for directors may
\nbe prescribed.<\/p>\n
Election of directors need not be by written ballot unless so required by
\nthe Certificate of Incorporation or by these Bylaws; wherein other
\nqualifications for directors may be prescribed.<\/p>\n
3.4 Resignation and Vacancies. Any director may resign effective on giving
\n ————————-
\nwritten notice to the chairman of the board, the chief executive officer, the
\npresident, the secretary or the board of directors, unless the notice specifies
\na later time for that resignation to become effective. If the resignation of a
\ndirector is effective at a future time, the board of directors may elect a
\nsuccessor to take office when the resignation becomes effective.<\/p>\n
Unless otherwise provided in the Certificate of Incorporation or these
\nBylaws:<\/p>\n
(i) Vacancies and newly created directorships resulting from any
\nincrease in the authorized number of directors elected by all of the
\nstockholders having the right to vote as a single class may be filled by a
\nmajority of the directors then in office, even if less than a quorum, or by a
\nsole remaining director. Each director so elected shall hold office for the
\nremainder of the full term of the class of directors in which the new
\ndirectorship was created or the vacancy occurred and until a successor has been
\nelected and qualified.<\/p>\n
(ii) Whenever the holders of any class or classes of stock or series
\nthereof are entitled to elect one or more directors by the provisions of the
\nCertificate of Incorporation, vacancies and newly created directorships of such
\nclass or classes or series may be filled by a majority of the directors elected
\nby such class or classes or series thereof then in office, or by a sole
\nremaining director so elected.<\/p>\n
If at any time, by reason of death or resignation or other cause, the
\ncorporation should have no directors in office, then any officer or any
\nstockholder or an executor, administrator, trustee or guardian of a stockholder,
\nor other fiduciary entrusted with like responsibility for the person or estate<\/p>\n
-8-<\/p>\n
of a stockholder, may call a special meeting of stockholders solely for he
\npurpose of electing directors in accordance with the provisions of the
\nCertificate of Incorporation or these Bylaws, or may apply to the Court of
\nChancery for a decree summarily ordering an election as provided in Section 211
\nof the General Corporation Law of Delaware.<\/p>\n
If, at the time of filling any vacancy or any newly created directorship,
\nthe directors then in office constitute less than a majority of the whole board
\n(as constituted immediately prior to any such increase), then the Court of
\nChancery may, upon application of any stockholder or stockholders holding at
\nleast ten percent (10%) of the total number of the then outstanding shares
\nhaving the right to vote for such directors, summarily order an election to be
\nheld to fill any such vacancies or newly created directorships, or to replace
\nthe directors chosen by the directors then in office as aforesaid, which
\nelection shall be governed by the provisions of Section 211 of the General
\nCorporation Law of Delaware as far as applicable.<\/p>\n
3.5 Removal. Unless otherwise restricted by statute, by the Certificate of
\n ——-
\nIncorporation or by these Bylaws, any director or the entire board of directors
\nmay be removed from office only for cause by the holders of a majority of the
\nshares then entitled to vote at an election of directors.<\/p>\n
3.6 Place of Meetings; Meetings by Telephone. Regular meetings of the
\n —————————————-
\nboard of directors may be held at any place within or outside the State of
\nDelaware that has been designated from time to time by resolution of the board
\nof directors. In the absence of such a designation, regular meetings shall be
\nheld at the principal executive office of the corporation. Special meetings of
\nthe board of directors may be held at any place within or outside the State of
\nDelaware that has been designated in the notice of the meeting or, if not stated
\nin the notice or if there is no notice, at the principal executive office of the
\ncorporation.<\/p>\n
Any meeting, regular or special, may be held by conference telephone or
\nsimilar communication equipment, so long as all directors participating in the
\nmeeting can hear one another; and all such directors shall be deemed to be
\npresent in person at the meeting.<\/p>\n
3.7 Regular Meetings. Regular meetings of the board of directors may be
\n —————-
\nheld without notice if the times of such meetings are fixed by the board of
\ndirectors.<\/p>\n
3.8 Special Meetings; Notice. Special meetings of the board of directors
\n ————————
\nfor any purpose or purposes may be called at any time by the chairman of the
\nboard, the vice chairman of the board, the chief executive officer, the
\npresident, the chairman of the executive committee, any vice president or the
\nsecretary or by any two (2) or more of the directors.<\/p>\n
Notice of the time and place of special meetings shall be delivered
\npersonally or by telephone to each director or sent by mail, telecopy, telegram
\nor other electronic or wireless means, charges prepaid, addressed to each
\ndirector at that director’s address as it is shown on the records of the
\ncorporation or if the address is not readily ascertainable, notice shall be
\naddressed to the director at the city or place in which the meetings of
\ndirectors are regularly held. If the notice is mailed, it shall be deposited in
\nthe United States mail at least four (4) days before the time of the holding of
\nthe meeting. If the notice is delivered personally or by telephone, telecopy,
\ntelegram or other electronic <\/p>\n
-9-<\/p>\n
or wireless means, it shall be delivered personally or by telephone or other
\nelectronic or wireless means or to the telegraph company at least twenty-four
\n(24) hours before the time of the holding of the meeting. Any oral notice given
\npersonally or by telephone may be communicated either to the director or to a
\nperson at the office of the director who the person giving the notice has reason
\nto believe will promptly communicate it to the director. If the meeting is to be
\nheld at the principal executive office of the corporation, the notice need not
\nspecify the place of the meeting. Moreover, a notice of special meeting need not
\nstate the purpose of such meeting, and, unless indicated in the notice thereof,
\nany and all business may be transacted at a special meeting.<\/p>\n
3.9 Quorum. A majority of the authorized number of directors shall
\n ——
\nconstitute a quorum for the transaction of business, except to fill vacancies in
\nthe board of directors as provided in Section 3.4 and to adjourn as provided in
\nSection 3.11 of these Bylaws. Every act or decision done or made by a majority
\nof the directors present at a duly held meeting at which a quorum is present
\nshall be regarded as the act of the board of directors, subject to the
\nprovisions of the Certificate of Incorporation and applicable law.<\/p>\n
A meeting at which a quorum is initially present may continue to transact
\nbusiness notwithstanding the withdrawal of directors, if any action taken is
\napproved by at least a majority of the required quorum for that meeting.<\/p>\n
3.10 Waiver of Notice. Notice of a meeting need not be given to any
\n —————-
\ndirector (i) who signs a waiver of notice or a consent to holding the meeting or
\nan approval of the minutes thereof, whether before or after the meeting, or (ii)
\nwho attends the meeting without protesting, prior thereto or at its
\ncommencement, the lack of notice to such directors. The transactions of any
\nmeeting of the board, however called and noticed or wherever held, are as valid
\nas though had at a meeting duly held after regular call and notice if a quorum
\nis present and if, either before or after the meeting, each of the directors not
\npresent signs a written waiver of notice. All such waivers shall be filed with
\nthe corporate records or made part of the minutes of the meeting. A waiver of
\nnotice need not specify the purpose of any regular or special meeting of the
\nboard of directors.<\/p>\n
3.11 Adjournment. A majority of the directors present, whether or not
\n ———–
\nconstituting a quorum, may adjourn any meeting to another time and place.<\/p>\n
3.12 Notice of Adjournment. Notice of the time and place of holding an
\n ———————
\nadjourned meeting need not be given if announced unless the meeting is adjourned
\nfor more than twenty-four (24) hours. If the meeting is adjourned for more than
\ntwenty-four (24) hours, then notice of the time and place of the adjourned
\nmeeting shall be given before the adjourned meeting takes place, in the manner
\nspecified in Section 3.8 of these Bylaws, to the directors who were not present
\nat the time of the adjournment.<\/p>\n
3.13 Board Action by Written Consent Without a Meeting. Any action
\n ————————————————-
\nrequired or permitted to be taken by the board of directors may be taken without
\na meeting, provided that all members of the board of directors individually or
\ncollectively consent in writing to that action. Such action by written consent
\nshall have the same force and effect as a unanimous vote of the board of<\/p>\n
-10-<\/p>\n
directors. Such written consent and any counterparts thereof shall be filed with
\nthe minutes of the proceedings of the board.<\/p>\n
3.14 Organization. Meetings of the board of directors shall be presided
\n ————
\nover by the chairman of the board, if any, or in his or her absence by the vice
\nchairman of the board, if any, or in his or her absence by the chairman of the
\nexecutive committee, if any, or in his or her absence by the chief executive
\nofficer, if any, or in his or her absence by the president, if any, or in his or
\nher absence by the executive vice president. In the absence of all such
\ndirectors, a president pro tem chosen by a majority of the directors present
\nshall preside at the meeting. The secretary shall act as secretary of the
\nmeeting, but in his or her absence the chairman of the meeting may appoint any
\nperson to act as secretary of the meeting.<\/p>\n
3.15 Fees and Compensation of Directors. Directors and members of
\n ———————————-
\ncommittees may receive such compensation, if any, for their services and such
\nreimbursement of expenses as may be fixed or determined by resolution of the
\nboard of directors. This Section 3.15 shall not be construed to preclude any
\ndirector from serving the corporation in any other capacity as an officer,
\nagent, employee or otherwise and receiving compensation for those services.<\/p>\n
ARTICLE IV<\/p>\n
COMMITTEES
\n ———-<\/p>\n
4.1 Committees of Directors. The board of directors may designate one (1)
\n ———————–
\nor more committees, each consisting of one or more directors, to serve at the
\npleasure of the board of directors. The board of directors may designate one (1)
\nor more directors as alternate members of any committee, who may replace any
\nabsent member at any meeting of the committee. Any committee, to the extent
\nprovided in the resolution of the board, shall have all the authority of the
\nboard, but no such committee shall have the power or authority to (i) approve or
\nadopt or recommend to the stockholders any action or matter that requires the
\napproval of the stockholders or (ii) adopt, amend or repeal any Bylaw of the
\ncorporation.<\/p>\n
4.2 Meetings and Action of Committees. Meetings and actions of committees
\n ———————————
\nshall be governed by, and held and taken in accordance with, the provisions of
\nArticle III of these Bylaws, Section 3.6 (place of meetings), Section 3.7
\n(regular meetings), Section 3.8 (special meetings and notice), Section 3.9
\n(quorum), Section 3.10 (waiver of notice), Section 3.11 (adjournment), Section
\n3.12 (notice of adjournment), and Section 3.13 (action without meeting), with
\nsuch changes in the context of those Bylaws as are necessary to substitute the
\ncommittee and its members for the board of directors and its members; provided,
\nhowever, that the time of regular meetings of committees may be determined
\neither by resolution of the board of directors or by resolution of the
\ncommittee, that special meetings of committees may also be called by resolution
\nof the board of directors, and that notice of special meetings of committees
\nshall also be given to all alternate members, who shall have the right to attend
\nall meetings of the committee. The board of directors <\/p>\n
-11-<\/p>\n
may adopt rules for the government of any committee not inconsistent with the
\nprovisions of these Bylaws.<\/p>\n
4.3 Committee Minutes. Each committee shall keep regular minutes of its
\n —————–
\nmeetings and report the same to the board of directors when required.<\/p>\n
4.4 Executive Committee. In the event that the board of directors
\n ——————-
\nappoints an executive committee, such executive committee, in all cases in which
\nspecific directions to the contrary shall not have been given by the board of
\ndirectors, shall have and may exercise, during the intervals between the
\nmeetings of the board of directors, all the powers and authority of the board of
\ndirectors in the management of the business and affairs of the corporation
\n(except as provided in Section 4.1 hereof) in such manner as the executive
\ncommittee may deem in the best interests of the corporation.<\/p>\n
ARTICLE V<\/p>\n
OFFICERS
\n ——–<\/p>\n
5.1 Officers. The officers of this corporation shall consist of a chief
\n ——–
\nexecutive officer, a president, one or more vice presidents, a secretary and a
\nchief financial officer who shall be chosen by the Board of Directors and such
\nother officers, including but not limited to a chairman of the board, a vice
\nchairman of the board, a chairman of the executive committee and a treasurer as
\nthe board of directors shall deem expedient, who shall be chosen in such manner
\nand hold their offices for such terms as the board of directors may prescribe.
\nAny two or more of such offices may be held by the same person. The board of
\ndirectors may designate one or more vice presidents as executive vice presidents
\nor senior vice presidents. Either the chairman of the board, the vice chairman
\nof the board, the chairman of the executive committee, or the president, as the
\nboard of directors may designate from time to time, shall be the chief executive
\nofficer of the corporation. The board of directors may from time to time
\ndesignate the president or any executive vice president as the chief operating
\nofficer of the corporation. Any vice president, treasurer or assistant
\ntreasurer, or assistant secretary respectively may exercise any of the powers of
\nthe president, the chief financial officer, or the secretary, respectively, as
\ndirected by the board of directors and shall perform such other duties as are
\nimposed upon such officer by the Bylaws or the board of directors.<\/p>\n
5.2 Appointment of Officers. In addition to officers elected by the board
\n ———————–
\nof directors in accordance with Sections 5.1 and 5.3, the corporation may have
\none or more appointed vice presidents. Such vice presidents may be appointed by
\nthe chairman of the board, the chief executive officer or the president and
\nshall have such duties as may be established by the chairman, the chief
\nexecutive officer or the president. Vice presidents appointed pursuant to this
\nSection 5.2 may be removed in accordance with Section 5.4.<\/p>\n
5.3 Terms of Office and Compensation. The term of office and salary of
\n ——————————–
\neach of said officers and the manner and time of the payment of such salaries
\nshall be fixed and determined by <\/p>\n
-12-<\/p>\n
the board of directors and may be altered by said board from time to time at its
\npleasure, subject to the rights, if any, of said officers under any contract of
\nemployment.<\/p>\n
5.4 Removal; Resignation of Officers and Vacancies. Any officer of the
\n ———————————————-
\ncorporation may be removed at the pleasure of the board of directors at any
\nmeeting or, except in the case of an officer chosen by the board of directors,
\nat the pleasure of any officer who may be granted such power by a resolution of
\nthe board of directors. Any officer may resign at any time upon written notice
\nto the corporation without prejudice to the rights, if any, of the corporation
\nunder any contract to which the officer is a party. If any vacancy occurs in any
\noffice of the corporation, the board of directors may elect a successor to fill
\nsuch vacancy for the remainder of the unexpired term and until a successor is
\nduly chosen and qualified.<\/p>\n
5.5 Chairman of the Board. The chairman of the board, if such an officer
\n ———————
\nbe elected, shall have general supervision, direction and control of the
\ncorporation’s business and its officers, and, if present, preside at meetings of
\nthe stockholders and the board of directors and exercise and perform such other
\npowers and duties as may from time to time be assigned to him by the board of
\ndirectors or as may be prescribed by these Bylaws. The chairman of the board
\nshall report to the board of directors.<\/p>\n
5.6 Vice Chairman of the Board. The vice chairman of the board of
\n ————————–
\ndirectors, if there shall be one, shall, in the case of the absence, disability
\nor death of the chairman, exercise all the powers and perform all the duties of
\nthe chairman of the board. The vice chairman shall have such other powers and
\nperform such other duties as may be granted or prescribed by the board of
\ndirectors.<\/p>\n
5.7 Chairman of Executive Committee. The chairman of the executive
\n ——————————-
\ncommittee, if there be one, shall have the power to call meetings of the board
\nof directors to be held subject to the limitations prescribed by law or by these
\nBylaws, at such times and at such places as the chairman of the executive
\ncommittee shall deem proper. The chairman of the executive committee shall have
\nsuch other powers and be subject to such other duties as the board of directors
\nmay from time to time prescribe.<\/p>\n
5.8 Chief Executive Officer: The powers and duties of the chief executive
\n ———————–
\nofficer are:<\/p>\n
(a) To call meetings of the board of directors to be held, subject to
\nthe limitations prescribed by law or by these Bylaws, at such times and at such
\nplaces as the chief executive officer shall deem proper.<\/p>\n
(b) To affix the signature of the corporation to all deeds,
\nconveyances, mortgages, leases, obligations, bonds, certificates and other
\npapers and instruments in writing which have been authorized by the board of
\ndirectors or which, in the judgment of the chief executive officer, should be
\nexecuted on behalf of the corporation, and to sign certificates for shares of
\nstock of the corporation.<\/p>\n
-13-<\/p>\n
(c) To have such other powers and be subject to such other duties as
\nthe board of directors may from time to time prescribe.<\/p>\n
5.9 President. The powers and duties of the president are:
\n ———<\/p>\n
(a) To call meetings of the board of directors to be held, subject to
\nthe limitations prescribed by law or by these Bylaws, at such times and at such
\nplaces as the president shall deem proper.<\/p>\n
(b) To affix the signature of the corporation to all deeds,
\nconveyances, mortgages, leases, obligations, bonds, certificates and other
\npapers and instruments in writing which have been authorized by the board of
\ndirectors or which, in the judgment of the president, should be executed on
\nbehalf of the corporation, and to sign certificates for shares of stock of the
\ncorporation.<\/p>\n
(c) To have such other powers and be subject to such other duties as
\nthe board of directors may from time to time prescribe.<\/p>\n
5.10 Vice Presidents. In case of the absence, disability or death of the
\n —————
\nchief executive officer and the president, the elected vice president, or one of
\nthe elected vice presidents, shall exercise all the powers and perform all the
\nduties of the chief executive officer and president. If there is more than one
\nelected vice president, the order in which the elected vice presidents shall
\nsucceed to the powers and duties of the chief executive officer or the president
\nshall be as fixed by the board of directors. The elected vice president or
\nelected vice presidents shall have such other powers and perform such other
\nduties as may be granted or prescribed by the board of directors.<\/p>\n
Vice presidents appointed pursuant to Section 5.2 shall have such powers
\nand duties as may be fixed by the chairman, chief executive officer or
\npresident, except that such appointed vice presidents may not exercise the
\npowers and duties of the chief executive officer or president.<\/p>\n
5.11 Secretary. The powers and duties of the secretary are:
\n ———<\/p>\n
(a) To keep a book of minutes at the principal office of the
\ncorporation, or such other place as the board of directors may order, of all
\nmeetings of its directors and stockholders with the time and place of holding,
\nwhether regular or special, and, if special, how authorized, the notice thereof
\ngiven, the names of those present at directors’ meetings, the number of shares
\npresent or represented at stockholders’ meetings and the proceedings thereof.<\/p>\n
(b) To keep the seal of the corporation and affix the same to all
\ninstruments which may require it.<\/p>\n
(c) To keep or cause to be kept at the principal office of the
\ncorporation, or at the office of the transfer agent or agents, a share register,
\nor duplicate share registers, showing the names of the stockholders and their
\naddresses, the number of and classes of shares, and the number and date of
\ncancellation of every certificate surrendered for cancellation.<\/p>\n
-14-<\/p>\n
(d) To keep a supply of certificates for shares of the corporation,
\nto fill in all certificates issued, and to make a proper record of each such
\nissuance; provided, that so long as the corporation shall have one or more duly
\nappointed and acting transfer agents of the shares, or any class or series of
\nshares, of the corporation, such duties with respect to such shares shall be
\nperformed by such transfer agent or transfer agents.<\/p>\n
(e) To transfer upon the share books of the corporation any and all
\nshares of the corporation; provided, that so long as the corporation shall have
\none or more duly appointed and acting transfer agents of the shares, or any
\nclass or series of shares, of the corporation, such duties with respect to such
\nshares shall be performed by such transfer agent or transfer agents, and the
\nmethod of transfer of each certificate shall be subject to the reasonable
\nregulations of the transfer agent to which the certificate is presented for
\ntransfer, and also, if the corporation then has one or more duly appointed and
\nacting registrars, to the reasonable regulations of the registrar to which the
\nnew certificate is presented for registration; and provided, further that no
\ncertificate for shares of stock shall be issued or delivered or, if issued or
\ndelivered, shall have any validity whatsoever until and unless it has been
\nsigned or authenticated in the manner provided in Section 8.5 hereof.<\/p>\n
(f) To make service and publication of all notices that may be
\nnecessary or proper, and without command or direction from anyone. In case of
\nthe absence, disability, refusal, or neglect of the secretary to make service or
\npublication of any notices, then such notices may be served and\/or published by
\nthe chief executive officer, president or a vice president, or by any person
\nthereunto authorized by either of them or by the board of directors or by the
\nholders of a majority of the outstanding shares of the corporation.<\/p>\n
(g) Generally to do and perform all such duties as pertain to the
\noffice of secretary and as may be required by the board of directors.<\/p>\n
5.12 Chief Financial Officer. The powers and duties of the chief financial
\n ———————–
\nofficer are:<\/p>\n
(a) To supervise the corporate-wide treasury functions and financial
\nreporting to external bodies.<\/p>\n
(b) To have the custody of all funds, securities, evidence of
\nindebtedness and other valuable documents of the corporation and, at the chief
\nfinancial officer’s discretion, to cause any or all thereof to be deposited for
\naccount of the corporation at such depositary as may be designated from time to
\ntime by the board of directors.<\/p>\n
(c) To receive or cause to be received, and to give or cause to be
\ngiven, receipts and acquittances for monies paid in for the account of the
\ncorporation.<\/p>\n
(d) To disburse, or cause to be disbursed, all funds of the
\ncorporation as may be directed by the board of directors, taking proper vouchers
\nfor such disbursements.<\/p>\n
-15-<\/p>\n
(e) To render to the chief executive officer or president and to the
\nboard of directors, whenever they may require, accounts of all transactions and
\nof the financial condition of the corporation.<\/p>\n
(f) Generally to do and perform all such duties as pertain to the
\noffice of chief financial officer and as may be required by the board of
\ndirectors.<\/p>\n
ARTICLE VI<\/p>\n
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
\n ————————————————-
\n AND OTHER AGENTS
\n —————-<\/p>\n
6.1 Indemnification of Directors and Officers. The corporation shall, to
\n —————————————–
\nthe maximum extent and in the manner permitted by the General Corporation Law of
\nDelaware, indemnify each of its directors and officers against expenses
\n(including attorneys’ fees), judgments, fines, settlements and other amounts
\nactually and reasonably incurred in connection with any proceeding, arising by
\nreason of the fact that such person is or was an agent of the corporation;
\nprovided, however, that the corporation may modify the extent of such
\nindemnification by individual contracts with its directors and executive
\nofficers and, provided, further, that the corporation shall not be required to
\nindemnify any director or officer in connection with any proceeding (or part
\nthereof) initiated by such person unless (i) such indemnification is expressly
\nrequired to be made by law, (ii) the proceeding was authorized in advance by the
\nboard of directors of the corporation, (iii) such indemnification is provided by
\nthe corporation, in its sole discretion, pursuant to the powers vested in the
\ncorporation under the General Corporation Law of Delaware or (iv) such
\nindemnification is required to be made pursuant to an individual contract. For
\npurposes of this Section 6.1, a “director” or “officer” of the corporation
\nincludes any person (i) who is or was a director or officer of the corporation,
\n(ii) who is or was serving at the request of the corporation as a director or
\nofficer of another corporation, partnership, joint venture, trust or other
\nenterprise, or (iii) who was a director or officer of a corporation which was a
\npredecessor corporation of the corporation or of another enterprise at the
\nrequest of such predecessor corporation.<\/p>\n
6.2 Indemnification of Others. The corporation shall have the power, to
\n ————————-
\nthe maximum extent and in the manner permitted by the General Corporation Law of
\nDelaware, to indemnify each of its employees and agents (other than directors
\nand officers) against expenses (including attorneys’ fees), judgments, fines,
\nsettlements and other amounts actually and reasonably incurred in connection
\nwith any proceeding, arising by reason of the fact that such person is or was an
\nagent of the corporation. For purposes of this Section 6.2, an “employee” or
\n“agent” of the corporation (other than a director or officer) includes any
\nperson (i) who is or was an employee or agent of the corporation, (ii) who is or
\nwas serving at the request of the corporation as an employee or agent of another
\ncorporation, partnership, joint venture, trust or other enterprise, or (iii) who
\nwas an employee or agent of a corporation which was a predecessor corporation of
\nthe corporation or of another enterprise at the request of such predecessor
\ncorporation.<\/p>\n
-16-<\/p>\n
6.3 Insurance. The corporation may purchase and maintain insurance on
\n ———
\nbehalf of any person who is or was a director, officer, employee or agent of the
\ncorporation, or is or was serving at the request of the corporation as a
\ndirector, officer, employee or agent of another corporation, partnership, joint
\nventure, trust or other enterprise against any liability asserted against him or
\nher and incurred by him or her in any such capacity, or arising out of his or
\nher status as such, whether or not the corporation would have the power to
\nindemnify him or her against such liability under the provisions of the General
\nCorporation Law of Delaware.<\/p>\n
6.4 Expenses. The corporation shall advance to any person who was or is a
\n ——–
\nparty or is threatened to be made a party to any threatened, pending or
\ncompleted action, suit or proceeding, whether civil, criminal, administrative or
\ninvestigative, by reason of the fact that he or she is or was a director or
\nofficer of the corporation, or is or was serving at the request of the
\ncorporation as a director or officer of another corporation, partnership, joint
\nventure, trust or other enterprise, prior to the final disposition of the
\nproceeding, promptly following request therefor, all expenses incurred by any
\ndirector or officer in connection with such proceeding, upon receipt of an
\nundertaking by or on behalf of such person to repay said amounts if it should be
\ndetermined ultimately that such person is not entitled to be indemnified under
\nthis Bylaw or otherwise; provided, however, that the corporation shall not be
\nrequired to advance expenses to any director or officer in connection with any
\nproceeding (or part thereof) initiated by such person unless the proceeding was
\nauthorized in advance by the board of directors of the corporation.<\/p>\n
Notwithstanding the foregoing, unless otherwise determined pursuant to
\nSection 6.5, no advance shall be made by the corporation to an officer of the
\ncorporation (except by reason of the fact that such officer is or was a director
\nof the corporation in which event this paragraph shall not apply) in any action,
\nsuit or proceeding, whether civil, criminal, administrative or investigative, if
\na determination is reasonably and promptly made (i) by the board of directors by
\na majority vote of a quorum consisting of directors who were not parties to the
\nproceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
\nquorum of disinterested directors so directs, by independent legal counsel in a
\nwritten opinion, that the facts known to the decision-making party at the time
\nsuch determination is made demonstrate clearly and convincingly that such person
\nacted in bad faith or in a manner that such person did not believe to be in or
\nnot opposed to the best interests of the corporation.<\/p>\n
6.5 Non-Exclusivity of Rights. The rights conferred on any person by this
\n ————————-
\nArticle VI shall not be exclusive of any other right which such person may have
\nor hereafter acquire under any statute, provision of the Certificate of
\nIncorporation, Bylaws, agreement, vote of stockholders or disinterested
\ndirectors or otherwise, both as to action in his official capacity and as to
\naction in another capacity while holding office. The corporation is specifically
\nauthorized to enter into individual contracts with any or all of its directors,
\nofficers, employees or agents respecting indemnification and advances to the
\nfullest extent not prohibited by the General Corporation Law of Delaware.<\/p>\n
-17-<\/p>\n
6.6 Survival of Rights. The rights conferred on any person by this
\n ——————
\nArticle VI shall continue as to a person who has ceased to be a director,
\nofficer, employee or other agent and shall inure to the benefit of the heirs,
\nexecutors and administrators of such a person.<\/p>\n
6.7 Amendments. Any repeal or modification of this Article VI shall only
\n ———-
\nbe prospective and shall not affect the rights under this Article VI in effect
\nat the time of the alleged occurrence of any action or omission to act that is
\nthe cause of any proceeding against any agent of the corporation.<\/p>\n
ARTICLE VII<\/p>\n
RECORDS AND REPORTS
\n ——————-<\/p>\n
7.1 Maintenance and Inspection of Records. The corporation shall, either
\n ————————————-
\nat its principal executive office or at such place or places as designated by
\nthe board of directors, keep a record of its stockholders listing their names
\nand addresses and the number and class of shares held by each stockholder, a
\ncopy of these Bylaws as amended to date, accounting books and other records.<\/p>\n
Any stockholder of record, in person or by attorney or other agent, shall,
\nupon written demand under oath stating the purpose thereof, have the right
\nduring the usual hours for business to inspect for any proper purpose the
\ncorporation’s stock ledger, a list of its stockholders, and its other books and
\nrecords and to make copies or extracts therefrom. A proper purpose shall mean a
\npurpose reasonably related to such person’s interest as a stockholder. In every
\ninstance where an attorney or other agent is the person who seeks the right to
\ninspection, the demand under oath shall be accompanied by a power of attorney or
\nsuch other writing that authorizes the attorney or other agent to so act on
\nbehalf of the stockholder. The demand under oath shall be directed to the
\ncorporation at its registered office in Delaware or at its principal place of
\nbusiness.<\/p>\n
7.2 Inspection by Director. Any director shall have the right to examine
\n ———————-
\nthe corporation’s stock ledger, a list of its stockholders and its other books
\nand records for a purpose reasonably related to his or her position as a
\ndirector. The Court of Chancery is hereby vested with the exclusive jurisdiction
\nto determine whether a director is entitled to the inspection sought. The Court
\nmay summarily order the corporation to permit the director to inspect any and
\nall books and records, the stock ledger, and the stock list and to make copies
\nor extracts therefrom. The Court may, in its discretion, prescribe any
\nlimitations or conditions with reference to the inspection, or award such other
\nand further relief as the Court may deem just and proper.<\/p>\n
7.3 Representation of Shares of Other Corporations. The chief execuitve
\n ———————————————-
\nofficer or president or any other officer of this corporation authorized by the
\nboard of directors is authorized to vote, represent, and exercise on behalf of
\nthis corporation all rights incident to any and all shares of any other
\ncorporation or corporations standing in the name of this corporation. The
\nauthority herein granted may be exercised either by such person directly or by
\nany other person authorized to do so by proxy or power of attorney duly executed
\nby such person having the authority.<\/p>\n
-18-<\/p>\n
ARTICLE VIII<\/p>\n
GENERAL MATTERS
\n —————<\/p>\n
8.1 Record Date for Purposes Other than Notice and Voting. For purposes
\n —————————————————–
\nof determining the stockholders entitled to receive payment of any dividend or
\nother distribution or allotment of any rights or the stockholders entitled to
\nexercise any rights in respect of any other lawful action, the board of
\ndirectors may fix, in advance, a record date, which shall not be more than sixty
\n(60) days before any such action. In that case, only stockholders of record at
\nthe close of business on the date so fixed are entitled to receive the dividend,
\ndistribution or allotment of rights, or to exercise such rights, as the case may
\nbe, notwithstanding any transfer of any shares on the books of the corporation
\nafter the record date so fixed, except as otherwise provided in the Certificate
\nof Incorporation, by these Bylaws, by agreement or by law.<\/p>\n
If the board of directors does not so fix a record date, then the record
\ndate for determining stockholders for any such purpose shall be at the close of
\nbusiness on the day on which the board adopts the applicable resolution or the
\nsixtieth (60th) day before the date of that action, whichever is later.<\/p>\n
8.2 Checks; Drafts; Evidences of Indebtedness. From time to time, the
\n —————————————–
\nboard of directors shall determine by resolution which person or persons may
\nsign or endorse all checks, drafts, other orders for payment of money, notes or
\nother evidences of indebtedness that are issued in the name of or payable to the
\ncorporation, and only the persons so authorized shall sign or endorse those
\ninstruments.<\/p>\n
8.3 Corporate Contracts and Instruments; How Executed. The board of
\n ————————————————-
\ndirectors, except as otherwise provided in these Bylaws, may authorize any
\nofficer or officers, or agent or agents, to enter into any contract or execute
\nany instrument in the name of and on behalf of the corporation; such authority
\nmay be general or confined to specific instances. Unless so authorized or
\nratified by the board of directors or within the agency power of an officer, no
\nofficer, agent or employee shall have any power or authority to bind the
\ncorporation by any contract or engagement or to pledge its credit or to render
\nit liable for any purpose or for any amount.<\/p>\n
8.4 Fiscal Year. The fiscal year of this corporation shall begin on the
\n ———–
\nfirst day of May of each year and end on the last day of April of the following
\nyear.<\/p>\n
8.5 Stock Certificates. There shall be issued to each holder of fully
\n ——————
\npaid shares of the capital stock of the corporation a certificate or
\ncertificates for such shares. Every holder of shares of the corporation shall be
\nentitled to have a certificate signed by, or in the name of the corporation by,
\nthe chairman or vice chairman of the board of directors, or the chief executive
\nofficer, or the president or a vice president, and by the treasurer or an
\nassistant treasurer, or the secretary or an assistant secretary of such
\ncorporation representing the number of shares registered in certificate form.
\nAny or all of the signatures on the certificate may be a facsimile. In case any
\nofficer, transfer agent or registrar who has signed or whose facsimile signature
\nhas been placed upon a certificate has<\/p>\n
-19-<\/p>\n
ceased to be such officer, transfer agent or registrar before such certificate
\nis issued, it may be issued by the corporation with the same effect as if he or
\nshe were such officer, transfer agent or registrar at the date of issue.<\/p>\n
8.6 Special Designation on Certificates. If the corporation is authorized
\n ———————————–
\nto issue more than one class of stock or more than one series of any class, then
\nthe powers, the designations, the preferences, and the 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 shall be set forth in full or summarized on the face or back of the
\ncertificate that the corporation shall issue to represent such class or series
\nof stock; provided, however, that, except as otherwise provided in Section 202
\nof the General Corporation Law of Delaware, in lieu of the foregoing
\nrequirements there may be set forth on the face or back of the certificate that
\nthe corporation shall issue to represent such class or series of stock a
\nstatement that the corporation will furnish without charge to each stockholder
\nwho so requests the powers, the designations, the preferences, and the relative,
\nparticipating, optional or other special rights of each class of stock or series
\nthereof and the qualifications, limitations or restrictions of such preferences
\nand\/or rights.<\/p>\n
8.7 Lost Certificates. The corporation may issue a new share certificate
\n —————–
\nor new certificate for any other security in the place of any certificate
\ntheretofore issued by it, alleged to have been lost, stolen or destroyed, and
\nthe corporation may require the owner of the lost, stolen or destroyed
\ncertificate or the owner’s legal representative to give the corporation a bond
\n(or other adequate security) sufficient to indemnify it against any claim that
\nmay be made against it (including any expense or liability) on account of the
\nalleged loss, theft or destruction of any such certificate or the issuance of
\nsuch new certificate. The board of directors may adopt such other provisions and
\nrestrictions with reference to lost certificates, not inconsistent with
\napplicable law, as it shall in its discretion deem appropriate.<\/p>\n
8.8 Construction; Definitions. Unless the context requires otherwise, the
\n ————————-
\ngeneral provisions, rules of construction, and definitions in the General
\nCorporation Law of Delaware shall govern the construction of these Bylaws.
\nWithout limiting the generality of this provision, the singular number includes
\nthe plural, the plural number includes the singular, and the term “person”
\nincludes both a corporation and a natural person.<\/p>\n
8.9 Provisions Additional to Provisions of Law. All restrictions,
\n ——————————————
\nlimitations, requirements and other provisions of these Bylaws shall be
\nconstrued, insofar as possible, as supplemental and additional to all provisions
\nof law applicable to the subject matter thereof and shall be fully complied with
\nin addition to the said provisions of law unless such compliance shall be
\nillegal.<\/p>\n
8.10 Provisions Contrary to Provisions of Law. Any article, section,
\n —————————————-
\nsubsection, subdivision, sentence, clause or phrase of these Bylaws which upon
\nbeing construed in the manner provided in Section 8.9 hereof, shall be contrary
\nto or inconsistent with any applicable provisions of law, shall not apply so
\nlong as said provisions of law shall remain in effect, but such result shall not
\naffect the validity or applicability of any other portions of these Bylaws, it
\nbeing hereby declared that these Bylaws would have been adopted and each
\narticle, section, subsection, subdivision,<\/p>\n
-20-<\/p>\n
sentence, clause or phrase thereof, irrespective of the fact that any one or
\nmore articles, sections, subsections, subdivisions, sentences, clauses or
\nphrases is or are illegal.<\/p>\n
8.11 Notices. Any reference in these Bylaws to the time a notice is given
\n ——-
\nor sent means, unless otherwise expressly provided, the time a written notice by
\nmail is deposited in the United States mails, postage prepaid; or the time any
\nother written notice is personally delivered to the recipient or is delivered to
\na common carrier for transmission, or actually transmitted by the person giving
\nthe notice by electronic means, to the recipient; or the time any oral notice is
\ncommunicated, in person or by telephone or wireless, to the recipient or to a
\nperson at the office of the recipient who the person giving the notice has
\nreason to believe will promptly communicate it to the recipient.<\/p>\n
ARTICLE IX<\/p>\n
AMENDMENTS
\n ———-<\/p>\n
Subject to Section 6.7 hereof, these Bylaws may be amended or repealed (1)
\nat any annual or special meeting of stockholders, by the affirmative vote of the
\nholders of a majority of the voting power of the stock issued and outstanding
\nand entitled to vote thereat, provided, however, that any proposed alteration or
\nrepeal of, or the adoption of any provision inconsistent with Sections 2.2, 2.3,
\n2.5 or 2.11 of Article II of the Bylaws or with Sections 3.2, 3.3, 3.4 or 3.5 of
\nArticle III of the Bylaws or this sentence, by the stockholders shall require
\nthe affirmative vote of the holders of at least 80% of the voting power of all
\nstock then outstanding, voting together as a single class; and, provided,
\nfurther, however, that in the case of any such stockholder action at a special
\nmeeting of stockholders, notice of the proposed alteration, repeal or adoption
\nof the new Bylaws or portion thereof must be contained in the notice of such
\nspecial meeting, or (2) by the affirmative vote of a majority of the board of
\ndirectors. The fact that the power to amend these Bylaws has been so conferred
\nupon the directors shall not divest the stockholders of the power, nor limit
\ntheir power to adopt, amend or repeal bylaws.<\/p>\n
Whenever an amendment or new bylaw is adopted, it shall be copied in the
\nbook of Bylaws with these Bylaws, in the appropriate place. If any provision of
\nthese Bylaws is repealed, the fact of repeal with the date of the meeting at
\nwhich the repeal was enacted or the filing of the operative written consent(s)
\nshall be stated in said book.<\/p>\n
-21-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8098],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9573,9574],"class_list":["post-41540","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-lynuxworks-inc","corporate_contracts_industries-technology__programming","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\/41540","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=41540"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41540"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41540"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41540"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}